Allowed

Divisional Manager v. Hampamma S/O Late Basappa

Karnataka HC26 Oct 2023MFA/23321/2012

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal and dismissed the claimants' cross-objections. Holding that since the accident occurred before the policy's effective time, the company had no liability. The Tribunal was ordered to impose liability solely on the lorry owner.

What did the court decide?

Insurance company exonerated; lorry owner M. Hanumantharaju ordered to pay compensation with interest within six weeks; deposit ordered refunded.

Divisional Manager Vs Hampamma S/O Late Basappa — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.23321/2012(MV) C/W MFA CROSS OBJ NO.100090/2018(MV)

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IN MFA.NO.23321/2012:

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BETWEEN:

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DIVISIONAL MANAGER, ICICI LOMBARD GENERAL INSURANCE COMPANY (P) LIMITED, NEAR MAYURA HOTEL, OPPOSITE KSRTC OLD BUS STAND, BELLARY, REPRESENTED BY THE DIVISIONAL MANAGER, ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., BELLAD BUILDING, GOKUL ROAD, HUBBALLI.

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…APPELLANT

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(BY SRI S. K. KAYAKAMATH, ADVOCATE)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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SMT. HAMPAMMA W/O. LATE BASAPPA, AGE: 62 YEARS, OCC: HOUSEHOLD, R/O: BADANAHATTI VILLAGE, TQ AND DIST: BELLARY.

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PARAMESH S/O. LATE BASAPPA, AGE: 21 YEARS, R/O: BADANAHATTI VILLAGE, TQ AND DIST: BELLARY.

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DHANANJAYA S/O. ANJINAPPA, AGE: 23 YEARS, OCC: LORRY DRIVER, R/O: MARENAHALLI, TAVARAKERRE HOBALI,

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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TQ: MAGADI, DIST: RAMANAGAR.

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M. HANUMANTHARAJU S/O. MAYANNA, AGE: MAJOR, OWNER OF THE LORRY, R/O: TAVARAKERE HOBALI, CHYOLANAYAKANA HALLI, T. G. HALLI, BANGALORE (SOUTH).

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…RESPONDENTS

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(BY SRI Y. LAXMIKANT REDDY, ADVOCATE FOR R1 AND R2; SRI R. SATHYAMURTHY AND SRI A.A.PATHAN, ADVOCATE FOR R4)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 12.04.2012 PASSED BY THE III – MOTOR ACCIDENT CLAIMS TRIBUNAL, BELLARY IN MVC NO.768/2010 WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.CROB.NO.100090/2018:

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BETWEEN:

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SMT. HAMPAMMA W/O. LATE BASAPPA, AGED ABOUT 67 YEARS.

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PARAMESH S/O. LATE BASAPPA, AGED ABOUT 27 YEARS.

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BOTH ARE R/O: BADANAHATTI VILLAGE, TQ AND DIST: BELLARY.

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(BY SRI Y. LAXMIKANT REDDY, ADVOCATE)

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AND:

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…CROSS OBJECTORS

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3 - NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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DHANANJAYA S/O. ANJINAPPA, AGED ABOUT 28 YEARS, OCC: LORRY DRIVER, R/O: MARENAHALLI, TAVARAKERRE HOBALI, TALUK: MAGADI, DISTRICT: RAMANAGAR.

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M. HANUMANTHARAJU S/O. MAYANNA, AGE: MAJOR, OWNER OF THE LORRY, R/O: TAVARAKERE HOBALI, CHOLANAYAKANA HALLI, T. G. HALLI, BANGALORE (SOUTH) – 586 123.

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THE MANAGER, ICICI LOMBARD MOTOR INSURANCE COMPANY LIMITED, MAYURA HOTEL COMPLEX, 2^ND FLOOR, BALLARI – 583 101.

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…RESPONDENTS

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(BY SRI S.K.KAYAKAMATH, ADVOCATE FOR R3; NOTICE TO R1 AND R2 ARE DISPENSED WITH)

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THIS MFA CROB IS FILED UNDER ORDER XLI RULE 22 OF CODE OF CIVIL PROCEDURE R/W SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 12.04.2012 PASSED IN MVC NO.768/2010 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL – III, BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEAL AND CROB, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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JUDGMENT

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The appeal in M.F.A. No.23321 of 2012 is filed by the insurance company challenging the judgment and award dated 12.04.2012 passed in M.V.C. No.768/2010 by the III Motor Accident Claims Tribunal, Ballari (for short, ‘the Tribunal’) questioning the liability fastened on it to pay the compensation on the ground that there was no existence of insurance policy as on the date and time of the accident, whereas cross-objections in M.F.A. Crob No.100090 of 2018 is filed by the claimants seeking enhancement of compensation.

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The factum of accident which occurred on 11.03.2010, the death of K.Lingaraju @ K.Gadilingappa in the said accident are not disputed.

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The disputed fact is that there was no existence

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of insurance policy as on the date and time of the accident. The question that requires to be considered is, whether, as on the date and time of the accident, there

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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was existence of the insurance policy issued in respect of

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the offending vehicle or not.

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Heard the arguments from both sides and perused the records.

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In the present case, from the complaint, FIR

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and the charge sheet, it is proved that the accident had taken place on 11.03.2010 in the morning at 10.30 a.m. Ex.R.1 is the insurance policy produced by the insurance company. The learned counsel for the appellant-insurance company contended that the insurance policy was issued after the occurrence of the accident at 10.30 a.m. on 11.03.2010 i.e., commencing from 1.34 p.m. of 11.03.2010 to 10.03.2011 midnight i.e. It is the submission of the learned counsel for the appellantinsurance company that after the accident, the owner of the lorry had purchased the insurance policy. Therefore, learned counsel submitted that as at the time and date of the accident there was no insurance policy and prayed to

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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exonerate the appellant-insurance from the liability to pay

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the compensation.

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Learned counsel for the appellant-insurance company places reliance on the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Smt. Sobina Iakal and Ors. , reported in (2007)7 SCC 786 . The Hon’ble Apex Court in Smt. Sobina Iakal’s case (supra) was pleased to observe as follows at paragraphs

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12 to 19.

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“12. Admittedly, at the time when the accident had occurred at 9.15 a.m. on 20-7-1994, the respondent did not have the insurance cover. The insurance policy was obtained at 2.00 p.m. on 20-71994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.

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13. The insurance policy and the motor renewal endorsement were on record. Both these documents were produced and proved by the appellant Company. The Tribunal and the High Court have seriously erred in ignoring these basic and vital documents and deciding the case against the

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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appellant Company on the ground of non-production of the cashier and development officer. This manifestly erroneous approach of the High Court has led to serious miscarriage of justice.

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14. This Court had an occasion to examine the similar controversy in New India Assurance Co. Ltd. v. Ram Dayal [(1990) 2 SCC 680 : 1990 SCC (Cri) 432 : (1990) 2 SCR 570] . In this case, this Court held that in absence of any specific time mentioned in the policy, the contract would be operative from the midnight of the day by operations of the provisions of the General Clauses Act but in view of the special contract mentioned in the insurance policy, the effectiveness of the policy would start from the time and date indicated in the policy.

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15. A three-Judge Bench of this Court in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66] has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the midnight of the day by operation of provisions of the General Clauses Act. But in view of the special contract mentioned in the insurance policy, it would be operative from the time and date the insurance policy was taken. In that case, the insurance policy was taken at 4.00 p.m. on 25-10-1983 and the

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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accident had occurred earlier thereto. This Court held (at SCC p. 67, para 3) that “the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant Company”.

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16. Another three-Judge Bench of this Court in Oriental Insurance Co. Ltd. v. Sunita Rathi [(1998) 1 SCC 365] dealt with similar facts. In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.

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17. In New India Assurance Co. v. Bhagwati Devi [(1998) 6 SCC 534] this Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time. This Court in New India Assurance Co. Ltd. v. Sita Bai [(1999) 7 SCC 575 : 1999 SCC (Cri) 1322] and National Insurance Co. Ltd. v. Chinto Devi [(2000) 7 SCC 50 : 2000 SCC (Cri) 1272] has taken the same view.

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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18. In J. Kalaivani v. K. Sivashankar [(2007) 7 SCC 792 : JT (2001) 10 SC 396] this Court has reiterated clear enunciation of law. The Court observed that it is the obligation of the court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy. A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner.

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19. In order to curb this widespread mischief of getting insurance policies after the accidents, it is absolutely imperative to clearly hold that the effectiveness of the insurance policy would start from the time and date specifically incorporated in the policy and not from an earlier point of time.”

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7. In the present case, the accident had taken

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place on 11.03.2010 in the morning at 10.30 a.m. Ex.R.1 is the insurance policy which indicates the commencement of the insurance policy i.e., from 1.34 p.m. of 11.03.2010 till midnight of 10.03.2011. In the absence of any proof regarding at what time the premium amount towards the

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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insurance policy was paid, the significant factor regarding commencement of insurance policy is the date and time mentioned on the insurance policy. As already stated above, the accident has taken place before the commencement of the insurance policy. The present case is covered by the principle of law laid down in Smt. Sobina

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Iakal’s case (supra). Since as on the date and time of the accident there was no insurance policy issued in respect of the offending vehicle, the appellant insurance company is not liable to pay the compensation. The owner of the lorry viz., M.Hanumantharaju, respondent No.2 before the Tribunal, shall alone pay the compensation to the claimants. Hence, the appeal filed by the insurance company is liable to be allowed.

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Insofar as the cross-objections seeking enhancement of compensation is concerned, there are no good grounds available for enhancing the compensation. Hence, the cross-objections filed by the claimants/crossobjectors is liable to be dismissed.

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NC: 2023:KHC-D:12559 MFA No. 23321 of 2012 C/W MFA.CROB No. 100090 of 2018

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In the result, I pass the following:

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ORDER

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i) The appeal in M.F.A. No.23321/2012 filed by the insurance company is allowed.

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ii) The cross-objections in M.F.A. Crob. No.100090 of 2018 filed by the claimants is dismissed.

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iii) The impugned judgment and award dated 12.04.2012 passed in M.V.C. No.768/2010 by the III Motor Accident Claims Tribunal, Ballari, stands modified holding that The owner of the lorry shall pay the compensation along with interest within a period of six weeks from the date of receipt of a copy of this order.

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iv) The appellant-insurance company is exonerated of its liability to pay compensation. The owner of the lorry viz., M.Hanumantharaju, respondent No.2 before the Tribunal, alone is liable to pay the compensation to the claimants.

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v) No order as to costs.

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vi) Draw the award accordingly.

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vii) The amount in deposit made by the appellantinsurance company is ordered to be refunded to the appellant-insurance company.

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SD/JUDGE

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KMS List No.: 1 Sl No.: 8

Divisional Manager v. Hampamma S/O Late Basappa

Case brief

What is this about?

What did the court decide?

Divisional Manager v. Hampamma S/O Late Basappa

Case brief

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