Partly allowed

Dhani Devi v. Bharat Kumar

Rajasthan HC18 Nov 2019CMA/3078/2018

Case brief

AI extract

What is this about?

The High Court allowed this civil miscellaneous appeal partly. It held that the Tribunal failed to record a specific finding on which of two conflicting policy dates was operative. The impugned judgment was quashed to that extent and remitted for a fresh determination on the policy's currency date.

What did the court decide?

The judgment and award of the Motor Accident Claims Tribunal were quashed to the extent of findings on issue No.3 and remitted for a specific finding on the operative date of the insurance policy.

Dhani Devi Vs Bharat Kumar — Insurance | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 3079/2018

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Hdfc ERGO General Insurance Company Limited, Jodhpur Office At N.k. Tower, Chopasni Road, Jodhpur Through Its Authorized Representative.

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----Appellant

¶5

Versus

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Smt. Dhani Devi W/o Late Sh. Hinduji,

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Kheta Ram S/o Late Mohanlal, (Minor)

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Mst. Kavita D/o Late Mohanlal, (Minor)

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Kamlesh D/o Late Mohanlal, (Minor) Minors are represented through their guardian grand mother Smt. Dhani Devi. All by caste Bawri (Mungiya) R/o. Near Masjid, Village Swaroopganj, Tehsil Pindwara, District Sirohi. Presently residing at St. Paul School, Sirohi.

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–--Claimants.

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Bharat Kumar S/o Shri Amraram Guwariya, R/o Village Sanwara-R, P.s. Rohida, Tehsil Pindwara, District Sirohi. (Owner - Cum - Driver)

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----Respondents

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Connected With

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S.B. Civil Misc. Appeal No. 3078/2018

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Smt. Dhani Devi W/o Hinduji Bawri (Mungia), Aged About 55 Years,

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Ketaram S/o Late Mohanlal Bawri, Aged About 20 Years,

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Kavita D/o Mohanlal Bawri, Aged About 18 Years, B/c Bawri (Mungia) ,

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Kamlesh S/o Mohanlal Bawri, Aged About 16 Years, All B/c Bawri (Mungia), R/o Near Masji, Saroopganj, Tehsil - Pindwara, District Sirohi. At Present Near Saint Paul School, Sirohi. (Appellant No.4 Minor through natural guardian appellant No.1)

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----Appellants

¶20

Versus

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Bharat Kumar S/o Amraram Guwaria, R/o Sanwara R. Police Station Rohida, Tehsil - Pindwara, District Sirohi.

(2 of 7)

[CMA-3079/2018]

(Driver And Owner)

Hdfc General Insurance Company Limited, Through Prescribed Authority, Hdfc General Insurance Co. Limited Office No. 2, 3Rd Floor, Upasana Tower, Subhash Marg, C Scheme, Jaipur. (Insurance Company)

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----Respondents

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For Appellant(s) For Respondent(s)

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: Mr. Jagdish Chandra Vyas : Mr. Ravi Panwar.

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HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

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Judgment

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18/11/2019

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Heard learned counsel for the parties.

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The facts in short are that the Motor Accident Claims Tribunal, Sirohi in Motor Accident Claim Case No.44/2013 (C.I.S. No.337/2014) has allowed the claim petition of the respondents/claimants while awarding a sum of Rs. 8,85,500/vide judgment and award dated 01/09/2018.

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While dealing with the claim petition of the claimants, learned Tribunal framed four issues which are as follows :-

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“1vk;k fnukad 22-10-2012 dks foi{kh la[;k ,d Hkjrdqekj }kjk okgu la[;k RJ-21C-4368 dks xQyr o ykijokgh ls pykus ds dkj.k eksguyky nq?kZVukxzLr gqvk vkSj mlds 'kjhj ij lk/kkj.k o xaHkhj pksVs igqaph] ftlds dkj.k eksguyky dh e`R;q dkfjr gqbZ \

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2+vk;k izkFkhZx.k Dyse esa crkbZ xbZ jkf’k :i;k 35]40]000@& ;k vU; dksbZ jkf’k izfrdj esa foi{khx.k ls ikus dk vf/kdkjh gS ;fn gka rks fdruh o fdl&fdl ls o fdl dnj \

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3- vk;k foi{kh chek dEiuh@foi{khx.k }kjk tokc esa mBkbZ xbZ vkifRr;ksa ds vk/kkj ij mudk dksbZ nkf;Ro ugha gS \

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4- nknjlh \”

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After framing the issues, a finding has been recorded on issue No.3 that since the premium amount was deposited by the Agent in the account of the company on 18/10/2012, therefore, it

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(3 of 7)

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[CMA-3079/2018]

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can be presumed that the person is insured w.e.f. 18/10/2012. There are two polices allegedly issued by the Insurance Company; one showing the period of insurance commencing from 22/10/2012 to 21/10/2013 and another from 23/10/2012 to 22/10/2013 respectively. Both the documents are on record as Ex.12 and Ex.A1.

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Counsel for the appellant submits that learned Tribunal has not recorded any finding with respect to the veracity of the two documents in which two different dates of the currency of policy have been mentioned. Learned Tribunal has straightway presumed that since the amount has been deposited on 18/10/2012, therefore, the Insurance cover will be effective from 18/10/2012 itself. He submits that such presumption by the Tribunal is incorrect in the light of the observations made by the Hon’ble Supreme Court in the case of Deokar Exports Private Limited

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vs. New India Assurance Company Limited, (2008) 14 SCC 598. The relevant para 13 reads as under :-

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“13. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter- proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date”.

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(4 of 7)

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[CMA-3079/2018]

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In support of submissions made, the counsel further relies upon the judgment of Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Sobina Iakai (Smt.) & Ors, (2007) 7 SCC 786. The relevant paras No.18 and 19 read as under :-

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“18. In J. Kalaivani v. K. Sivashankar, 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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Learned counsel for the respondents, while opposing the arguments raised by learned counsel for the appellant, submits that since the amount has already been deposited on 18/10/2012, therefore, the insurance cover is supposed to be effective w.e.f. 18/10/2012 itself. However, learned counsel for the respondents is unable to satisfy this Court that the learned Tribunal has failed to record any finding as to whether out of the two documents i.e. Insurance Policy Note Ex.12 and Ex.A1 which one is correct.

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Learned counsel further relies upon the provision of Section 64 VB(2) of the Insurance Act, 1938 and submits that the moment the amount is deposited with the Insurance Company, the risk is covered. For the purpose, he relies upon the judgment of Hon’ble Supreme Court in the case of Ashatai vs. Shriram City Union Finance Ltd. (Civil Appeal No.3962 of 2019) decided on 16/04/2019. The relevant paras of the judgment read as under :-

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(5 of 7)

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[CMA-3079/2018]

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“3.6. The Respondent – Finance Company however delayed in forwarding the amount to the Insurance Company for obtaining the insurance policy, which was issued on 30.03.2015 for the period 30.03.2015 to 29.03.2016. Hence, there was a clear deficiency of service by the Respondent – Finance Company in delay in obtaining the insurance policy from its sister concern. 3.7. Section 64VB(2) of the Insurance Act, 1938 provides that :

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“For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer.” It is the admitted position that the deceased husband of the Appellant had paid the insurance premium by a Demand Draft in favour of the Insurance Company. This has been acknowledged in paragraph 4(c) of the Revision Petition filed by the Respondent – Finance Company, as referred to above.

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As a consequence, the risk would be covered from the date of payment of the insurance premium. The loan was secured from the date on which the insurance premium was paid. The premium having been paid by the Appellant’s husband during his lifetime, the loan was to be adjusted from the insurance policy. 3.8. The National Commission has erroneously set aside the Order passed by the State Commission on factually incorrect grounds.

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The Appellant has made out a clear case of deficiency of service on the part of the Respondent – Finance Company”.

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I have considered the submissions made at the bar and examined the findings of learned Tribunal on issue No.3.

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It is true that in both the documents Ex.12 and Ex.A1, the date of fund transfer number is mentioned and date is mentioned as 18/10/2012. However, in both these documents, the date of the policy cover is different. Learned Tribunal has not dealt with the issue that as to which one date out of two should be considered as the date from which the Insurance Policy will be in-currency. Merely because fund transfer date is mentioned as 18/10/2012, it cannot be presumed that the risk of the person is covered w.e.f. 18/10/2012. This fund transfer, according to learned counsel for

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(6 of 7)

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[CMA-3079/2018]

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the appellant, is made by the Agent in bulk and not by the insured. However, there is no foundation for such assertion as the cover note depicts the specific date of covering the policy and date on which the fund was transferred. The absence of specific finding and consideration with respect to the currency of the policy is required to be gone into by learned Tribunal specifically in the circumstances of the present case. Only on this limited issue that whether the insurance cover note was operative w.e.f. 22/10/2012 or 23/10/2012, a specific finding is required to be recorded by learned Tribunal. Only on this limited issue, the matter deserves to be remitted back to learned Tribunal. The parties will be free to raise their submissions and adduce their evidence, if any in support of their contentions only on the specific issue discussed above.

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Learned Tribunal is requested to complete the proceedings in this respect within a period of two months from the date on which record is received by the Tribunal.

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In view of the discussion made above, the appeal is partly allowed. The judgment and award dated 01/09/2018 passed by learned Motor Accident Claims Tribunal, Sirohi in Motor Accident Claim Case No.44/2013 (C.I.S. No.337/2014) is quashed to the extent of findings on issue No.3 and the matter is remitted back to the learned Tribunal to that extent. The registry of this Court is directed to remit the record forthwith. The parties shall appear before learned Tribunal on 02/12/2019 and on the date fixed by learned Tribunal thereafter.

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(7 of 7)

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[CMA-3079/2018]

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S.B. Civil Misc. Appeal No. 3078/2018 :

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In the light of the judgment of even date passed by this Court in S.B. Civil Misc. Appeal No. 3079/2018, counsel for the appellants/claimants does not press this appeal at this stage. However, he seeks liberty to challenge the judgment passed afresh by learned Tribunal.

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Accordingly, the appeal is dismissed as not pressed with aforesaid liberty.

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(VINIT KUMAR MATHUR),J

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54-SanjayS/-

Dhani Devi v. Bharat Kumar

Case brief

What is this about?

What did the court decide?

Dhani Devi v. Bharat Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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