At, High Court of Karnataka Circuit Bench OF Kalaburagi
By, THE HONOURABLE MR. JUSTICE P. KRISHNA BHAT
For the Appellant: Preeti Patil Melkundi, Advocate. For the Respondents: Basavaraj R. Math, S.K. Babshetty, Advocates.
1. This is an appeal by the insurance company calling in question the correctness of the judgment and award dated 28.09.2011 in MVC No.142/2009 by Prl. Senior Civil Judge & MACT-II, Bidar.2. The facts leading to the claim petition proceeded on the allegation that the claimant was traveling in Maxi Cab bearing registration No.KA-321568 on 7.5.2008 and at about 1.00 p.m. when the vehicle reached near Marapur-T on Bidar-Astoor road, on account of rash and negligent driving of the driver of the vehicle it met with an accident resulting in injuries to the claimant. The claim petition was allowed by the learned Tribunal awarding a compensation of Rs.1,60,200/- with interest thereon at 6% p.a. from the date of petition till its payment.3. The appellant insurance company is aggrieved by the fastening of liability on it to pay the compensation.4. Learned counsel for the appellant-insurance company submits that admittedly the accident had taken place on 7.5.2008 at 1.00 p.m. as per Ex.P.1 FIR and Ex.P.2 copy of the complaint. She further submits that the earlier policy of insurance issued to the offending Maxi Cab by the appellant had expired on 9.2.2008 itself. Thereafter the premium was paid for issue of policy of insurance only on 7.5.2008 at 2.21 p.m. She pointed out that this was about 1 1/2 hours after the accident. She submitted that on account of the same, there was no effective policy coverage at the time of accident and therefore learned Tribunal was in error in holding that "contract of insurance was in force on the date of accident, but it was expressly suppressed by the respondent No.2, through RW.1"5. Learned counsel Sri S.K.Babashetty for respondent No.2 owner submits since the premium was paid at 2.21 p.m. on 7.5.2008, the policy issued relates back to the midnight preceding the time of the accident and therefore learned Tribunal was right in fastening the liability on the insurance company and, in such circumstances, the judgment and award is not liable to be interfered with.6. The factual position as submitted by the learned counsel for the appellant-insurance company is not in dispute. The earlier policy of insurance issued to the offending vehicle by the appellant had expired on 09.02.2008. There is no dispute about the fact that the accident had taken place on 7.5.2008 at 1.00 p.m. There cannot be any dispute about the fact that premium was paid by the owner of the vehicle on 7.5.2008 at 2.21 p.m. that is after the accident and the policy coverage became effective only from midnight of night including 07.05.2008 and 08.05.2008 in view of the express terms of the entry in the policy. In similar circumstances, the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Sobina Iakai (Smt) and Others, (2007) 7 SCC 786 case has observed as follows: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 20.7.1994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.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 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.14. This Court had an occasion to examine the similar controversy in the case of New India Insurance Company v. Ram Dayal. In this case, this Court held that in absence of any specific time mentioned in the policy, the contract would be operative from the mid-night 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.15. A three-judge Bench of this Court in M/s National Insurance Co. Ltd. v. Smt. Jikhubhai Nathuji Dabhi has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night 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 accident had occurred earlier thereto. This Court held that (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".16. Another three-Judge Bench of this Court in M/s Oriental Insurance Co. Ltd. v. Sunita Rathi 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.17. In New India Assurance Co. vs. Bhagwati Devi, 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 and National Insurance Co. Ltd. v. Chinto Devi has taken the same view.18. In Kalaivani & Ors. v. K. Sivashankar & Ors., 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.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 speci
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fically incorporated in the policy and not from an earlier point of time."7. The above decision of the Hon'ble Supreme Court squarely applies to the present case and therefore, there is no policy coverage for the offending vehicle at the time of the accident. Accordingly, the liability fastened on the insurance company to pay the compensation by the learned Tribunal is erroneous and it is liable to be set aside. Hence, the following:ORDERThe above appeal is allowed.The judgment and award dated 28.09.2011 in MVC No.142/2009 is set aside to the extent of fastening liability on the appellant-Insurance Company to pay the award amount.The amount in deposit shall be refunded to the appellant.