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M/s. United India Insurance Co. Ltd., Div. Office- I, Secunderabad v/s Syed Mohd. Rayees & Another


    M.A.C.M.A. No. 409 of 2007

    Decided On, 11 March 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE K. LAKSHMAN

    For the Appellant: A.V.K.S. Prasad, Advocate. For the Respondents: R1, Vishwarupa Chary, Advocate.



Judgment Text


1. Appellant - M/s. United India Insurance Company Limited filed the present appeal assailing the award and decree dated 16.09.2006 in O.P. No.1460 of 2003 passed by the V Additional Metropolitan Sessions Judge (Mahila Court) - cum - XIX Additional Chief Judge, City Civil Courts, Hyderabad (for short ‘the Tribunal’).

2. Vide the aforesaid award, the Tribunal has awarded an amount of Rs.34,000/- towards compensation to respondent No.1 herein payable by respondent No.2 and the appellant herein jointly and severally with proportionate costs and interest @ 7% per annum from the date of petition till the date of realization as against the claim of Rs.2,00,000/- laid by respondent No.1.

3. Heard Mr. A.V.K.S. Prasad, learned counsel for the appellant - Insurer and Mr. T. Viswarupa Chary, learned counsel for respondent No.1 - claimant. Despite service of notice on respondent No.2, none appears.

4. The appellant - Insurance Company preferred the present appeal questioning the liability itself. It is the specific contention of the appellant that the Insurer is not liable to pay any compensation to the claimant since as on the date and time of the accident, the policy was not in force. It is his further contention that as per Ex.A1 – FIR and Ex.A2 - charge sheet, the accident had occurred at 2.30 p.m. on 18.07.2001 at I.S. Sadan, Hyderabad, whereas, as per Ex.B1 - cover note and Ex.B2 - insurance policy, it was issued at 14:45 hours of 18.07.2001 at Hyderabad. With the said contentions, the learned counsel for the appellant would contend that since the policy was not in operation at the time of accident i.e., at 2.30 p.m. of 18.07.2001, there is no contract between the appellant and respondent No.2 - owner of the crime vehicle, and as such, the appellant is not liable to pay any compensation to respondent No.1 herein.

5. It is further contended by the learned counsel for the appellant that the Tribunal without considering the said aspect, more particularly, the contention of the Insurer that it is not liable to pay compensation in view of non-existence of insurance policy at the time of accident, awarded compensation fixing liability on the Insurer. According to him, the Tribunal erroneously considered the deposition of PW.1 that the accident had occurred at 15:30 hours on 18.07.2001 and if the time stated by PW.1 is to be accepted it is well covered by the policy and accordingly fixed the liability on Insurer. By referring the said finding of the Tribunal, the learned counsel for the appellant would contend that the said approach of the Tribunal is erroneous and contrary to record, more particularly, Exs.A1, A2, B1 and B2.

6. The learned counsel for the appellant would rely on the principle held by erstwhile High Court of the combined State of Andhra Pradesh in New India Assurance Co.Ltd., Nizamabad v. Sakali Rajanna (2012 (5) ALD 405). In the said case, relying upon the principle held by the Apex Court in Oriental Insurance Company Limited v. Sunita Rathi (1998) 1 SCC 365) held that the Insurer is not liable to pay compensation since the policy came into force at 5.15 p.m. on 25.04.1996, whereas accident had occurred at 0.30 hours on 25.04.1996.

7. The learned counsel for the appellant also relied upon another decision of the Apex Court in New India Assurance Company Limited v. Sita Bai (1999) 7 SCC 575), wherein also it was held that Insurer is not liable to pay compensation since the policy was came into force at 2100 hours on 16.04.1987, whereas accident had occurred at 1000 hours on 16.04.1987.

8. The learned counsel for the appellant also relied upon the decisions of the Apex Court in National Insurance Company Limited v. Jikubha nathuji Dabhi (1997 ACJ 351), New India Assurance Company Limited v. Bhagwati Devi (1999 ACJ 534), New India Assurance Co. Ltd., v. Ram Dayal (1990) 2 SCC 680) and New India Assurance Co. Ltd., v. Rakesh Talwar (2000) 9 SCC 229) on the very same principle. With the above contentions, the learned counsel for the appellant would contend that the Tribunal erred in fixing the liability on the appellant and awarding compensation to the claimant is not sustainable.

9. On the other hand, the learned counsel for respondent No.1 - claimant would contend that the Tribunal rightly awarded the compensation fixing the liability on the Insurer. According to him, the Tribunal considered the deposition of PW.1 that the accident had occurred at 15:30 hours on 18.07.2001, and if the time stated by PW.1 is to be accepted, it is well covered by the policy. He would further contend that in Ex.B1 - cover note as against serial No.6 relating to effective date and time of commencement of Insurance for the purpose of the Act, only date was mentioned as 18.01.2001 and time was not mentioned. Therefore, it has to be construed that the policy came into force from the mid-night of previous day i.e., 17.07.2001 itself. With the said contentions, the learned counsel for respondent No.1 - claimant would contend that the Tribunal has rightly awarded the compensation and rightly fixed the liability on the appellant and there is no circumstance that warrants interference by this Court in the present appeal.

10. Perused the entire record including Exs.A1 and A2, FIR and charge sheet respectively and also Ex.B1 and B2, cover note and insurance policy respectively. Respondent No.1 - claimant to prove the accident and also coverage of insurance policy examined himself as PW.1 and also PW.2, the doctor who treated him. Whereas, to prove that the said policy (Ex.B2) was not in force at the time of accident, the appellant - Insurer has examined Mr. S. Raghuram, Manager as RW.1 and also filed Ex.B1 - cover note and Ex.B2 policy.

11. Admittedly, in Exs.A1 and A2, the complainant has specifically stated that the accident had occurred at 2.30 p.m. on 18.07.2001 at I.S. Sadan, Hyderabad. Basing on the said complaint given by brother of respondent No.1, the police, Saidabad have registered Ex.A1 FIR, but they have mentioned the date of occurrence as 18.07.2001 and time of occurrence as “about 3.00 p.m.” It is also mentioned in Ex.A1 FIR that they have received the information at 15:20 hours on 18.07.2001 and the distance between the police station and place of accident is 2 kms. Whereas, in Ex.A2 - charge sheet, it is specifically mentioned that the accident had occurred on 18.07.2001 at 2.30 p.m. at I.S. Sadan. In Ex.A2 - charge sheet, it is also mentioned that LW.1 - Mohd. Anwar i.e., brother of respondent No.1 - injured came to Police Station at 1520 hours on 18.07.2001 and lodged a complaint stating that his brother met with an accident on 18.07.2001 at 2.30 p.m. at I.S. Sadan. Therefore, it is not in dispute that the accident had occurred at 2.30 p.m. on 18.07.2001 at I.S. Sadan, Hyderabad.

12. On perusal of Ex.B1 - cover note, though as against serial No.6 concerning effective date and time of commencement of Insurance for the purpose of the Act, only date was mentioned as 18.07.2001, but not mentioned the time. At the bottom of Ex.B1, place is mentioned as Hyderabad, date is shown as 18.07.2001 and time as 14:45 hours. It was issued at United India Insurance Company Limited, Divisional Office No.1, 1-7-241/10, 3rd floor, Sarojini Devi Road, Secunderabad. In Ex.B2 - policy also, it is specifically mentioned the policy period as “14:45 hours on 18.07.2001 to midnight of 17.07.2002. Therefore, it is also not in dispute that Ex.B2 policy was taken under Ex.B1 cover note on 18.07.2001 at Divisional Office No.1, Sarojini Devi Road, Secunderabad at 14:45 hours. As stated above, though at specific column time is not mentioned, but in the very same Ex.B1 cover note, time was mentioned as 14:45 hours of 18.07.2001. Therefore, virtually at the time of accident, Ex.B2 policy was not in force. It is also relevant to note that Ex.B2 policy came into operation/force at 14:45 hours of 18.07.2001, whereas, the accident had occurred at 2.30 p.m. on 18.07.2001. Hence, at the time of accident, virtually there was no contract between the appellant - Insurer and respondent No.2, owner of the crime vehicle.

13. It is the submission of the learned counsel for the appellant that cover-note would be issued to the owner of the vehicle to facilitate him to ply the vehicle on the road till the receipt of the policy. He would further contend that as per the provisions of the M.V. Act, vehicle should not ply on the road without insurance. In view of the same, the Insurer will issue cover-note to the owner of the vehicle to facilitate him to ply the vehicle on the road. In the present case, Ex.B1 cover note and Ex.B2 policy were issued simultaneously by mentioning time of policy as 14:45 hours on 18.07.2001.

14. In view of the above discussion, the finding of the Tribunal that the accident had occurred at 15:30 hours on 18.07.2001 as per the d

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eposition of PW.1 erroneous and contrary to record. The Tribunal ignored Exs.A1, A2, B1 and B2 documents and gave the said finding only believing the deposition of PW.1 which is contrary to Exs.A1, A2, B1 and B2. Thus, the said finding of the Tribunal fixing liability on the appellant - Insurer relying on the deposition of PW.1 by ignoring the said documents is erroneous. In view of the same, the impugned award passed by the Tribunal is liable to be set aside and, accordingly the same is set aside. 15. In the result, the appeal is allowed and the award and decree dated 16.09.2006 in O.P. No.1460 of 2003 passed by the Tribunal are set aside in so far as the appellant - Respondent No.2 - Insurer is concerned. However, the order and decree in respect of fixing liability on respondent No.2 herein and respondent No.1 in the O.P. is confirmed. There shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.
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