Bajaj Allianz General Insurance ... vs Naidu Ramulu
2022 Latest Caselaw 9593 AP

BVLNC                                               MACMA 183 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                     M.A.C.M.A.No.183 OF 2016

JUDGMENT:

This appeal is preferred by the Appellant/Insurance Company,

challenging the award dated 23.09.2015 passed in

M.V.O.P.No.125/2011 on the file of Motor Accidents Claims Tribunal-

cum-I Addl.District Judge, Ongole, (for short 'the Tribunal'), wherein

the Tribunal while partly allowing the petition, awarded compensation

of Rs.5,72,569/- with interest @ 6% p.a. from the date of registration

of petition, till the date of deposit for the injuries sustained by the

claimant in a motor vehicle accident.

2. For the sake of convenience, the parties will be referred to as

parties in the M.V.O.P.

3. As seen from the record, originally the petitioner filed an

application U/s.166 (1) (a) of the Motor Vehicles Act, 1988 (for brevity

"the Act") claiming a compensation of Rs.5,00,000/- on account of the

injuries and disability sustained by the petitioner in a motor vehicle

accident that occurred on 07.04.2010 under the following heads:

4. The facts show that 0n 07.04.2010 the petitioner and some

others boarded an auto bearing No.AP27X 9785 to go to BVLNC MACMA 183 of 2016 Page 2 of 13 Dt: 14.12.2022

Singarayakonda village on their business work, and when they reached

near Dandubata at 05.40 a.m., at that time the driver of tractor and

trailer bearing No.AP27X 1367 and 1362 drove the same in a rash and

negligent manner with high speed, and hit the auto on opposite

direction, as a result of which, the petitioner fell on the road and

sustained severe multiple injuries, and immediately he was shifted to

hospital, where his right thigh and leg amputated by conducting

operation, and the petitioner was treated in several hospital and spent

a sum of Rs.1,00,000/-. The Station House Officer, Singarayakonda

P.S. registered a case against the driver of tractor and trailer/1st

respondent in Cr.No.41/2010 for the offence punishable U/s.337, 338

of Indian Penal Code and filed police report (charge sheet) against the

driver of said tractor and trailer.

5. Before the Tribunal, the 2nd respondent/Insurance Company,

filed written statement, while traversing the material averments with

regard to manner of accident, age of the injured, avocation of the

injured, income of the injured, rash and negligence on the part of the

driver of the crime vehicle, nature of injuries, medical expenditure,

alleged permanent disability, and liability to pay compensation, and

contended that the 1st respondent never drove the said tractor and

trailer in a rash and negligent manner, and caused the accident, and BVLNC MACMA 183 of 2016 Page 3 of 13 Dt: 14.12.2022

further, the 1st respondent is not having valid and effective driving

license at the time of accident. The respondents No.1, 3 and 4

remained exparte.

6. Before the Tribunal, the 5th respondent/Insurance Company,

who is insurer of auto No.AP27X 9785 filed written statement, denying

the material averments of the petition, contended that the 3rd

respondent/driver of auto bearing No.AP27X 9785 never drove the said

auto in a rash and negligent manner, and accident occurred due to

rash and negligent driving of the driver of tractor and trailer, and

hence, the petition against the 5th respondent is not maintainable.

7. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the petitioner Naidu Ramulu sustained injuries on 07.04.2010 at about 05.45 a.m. due to rash and negligent driving of the drivers of tractor and trailer bearing No.AP27X 1367 & 1362 and auto bearing No.AP 27X 9785 respectively?

2. Whether the petitioner is entitled for compensation? If so, t0 what amount and from whom?

3. To what relief?

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8. To substantiate his claim, the petitioner examined P.Ws-1 to 3

and got marked Exs.A-1 to A-5. On behalf of 2nd respondent, R.Ws-1

and 2 were examined and Exs.B-2 toB-5 and Exs.X-1 and XC-2 were

marked.

9. The Tribunal, taking into consideration the evidence of P.Ws-1 to

3, coupled with Exs.A-1 to A-5, held that the accident took place due

to the rash and negligent driving of the driver of tractor and trailer,

and further, taking into consideration the evidence of P.Ws-1 to 3

corroborated by Exs.A-1 to A-5, awarded a compensation of

Rs.5,72,569/- with interest @ 6% p.a. from the date of registration of

petition, till the date of deposit, as mentioned below.

1.        One crush injury                                     25,000-00

2.        Pain and suffering                                   15,000-00

3.        Medical expenses                                     71,769-00

4.        Compensation for disability                        4,32,000-00

                                           TOTAL = Rs.       5,72,569-00

10. The main contention of the appellant/Insurance Company, who

is 2nd respondent in the claim petition is that the Tribunal committed a

serious error in ignoring Ex.B-2, which clearly demonstrate that the

policy was taken on 07.04.2010 at 04.00 p.m., whereas the accident BVLNC MACMA 183 of 2016 Page 5 of 13 Dt: 14.12.2022

was occurred at about 05.45 a.m. on 07.04.2010, and that the policy

would start from the time and date specifically incorporated in Ex.B-2

cover note, and not from an earlier point of time, and the Tribunal

failed to consider the judgment of the Hon'ble Apex Court National

Insurance Company Limited Vs. Smt.Sobina Iakai and others, and

therefore, the order of the Tribunal shall be set aside against the

appellant.

11. In the light of above ground urged by the appellant the points

that would arise for consideration in this appeal are as under:

1. Whether the Tribunal wrongly applied the effectiveness of the insurance policy ignoring the date and time mentioned in Ex.B2?

2. To what relief?

12. POINT No.1: The learned counsel for the appellant/Insurance

Company vehemently contended that Ex.B-2 cover note establish that

it was obtained on 07.04.2010 at about 04.00 p.m., where as the

accident was occurred at 05.45 a.m. on 07.04.2010, and therefore,

there was no insurance coverage at the time of accident; and as per

the judgment of the Hon'ble Apex Court in National Insurance

Company Limited Vs. Smt.Sobina Iakai and others, the

effectiveness of the insurance policy would start from the time and BVLNC MACMA 183 of 2016 Page 6 of 13 Dt: 14.12.2022

date specifically incorporated in the policy, and not from an earlier

point of time.

13. The learned counsel for the respondents/claimants submitted

that Ex.B-2 policy contains a statement in printing as "not valid for

risk starting before 1/2/2010 and after 15/5/2010", and in that view

of the matter, the effectiveness of the policy would start from first

hour of the date i.e.. from 12.00 a.m. on 07.04.2010; and in support of

his arguments, relied upon the judgments of High Court of Andhra

Pradesh in the cases of United Insurance Company Limited Vs. Kaki

Prabhakar1 and New India Assurance Company Limited, Anantapur

Vs. B.Gopala2.

14. It is an admitted fact that the accident was occurred on

07.04.2010 at about 05.45 a.m.

15. The Tribunal upon considering the evidence of the claimant, and

the police report (charge sheet) laid by the police, and other

circumstances, held that the accident was occurred due to rash and

negligence of the driver of the tractor-cum-trailer.

    ALT 2012 (2) 70

    ALD 2006 (4) 686
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16. Ex.B-2 is a copy of cover note issued by the 2nd respondent i.e.,

the appellant who is the insurer of the tractor-cum-trailer in the case.

As per Ex.B-2, it was issued on 07.04.2010 at about 04.00 p.m.

Therefore, it is clear that it was issued subsequent to the accident. The

1st respondent i.e., owner-cum-driver of the tractor-cum-trailer

remained exparte, and he did not challenge the contents of Ex.B-2

cover note.

17. Hon'ble Supreme Court in National Insurance Company

Limited Vs. Smt.Sobina Iakai and others3 held as under:

"This Court had an occasion to examine the similar controversy in the case of New India Insurance Company v. Ram Dayal (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 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.

A three-judge Bench of this Court in M/s National Insurance Co.

Ltd. v. Smt. Jikhubhai 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 mid-night of the day by operation of provisions of the General Clauses Act. But in view of

2007 ACJ 2043 BVLNC MACMA 183 of 2016 Page 8 of 13 Dt: 14.12.2022

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 the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.

Another three-Judge Bench of this Court in M/s 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.

In New India Assurance Co. vs. 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 and National Insurance Co. Ltd. v. Chinto Devi (2000) 7 SCC 50 has taken the same view.

In Kalaivani & Ors. v. K. Sivashankar & Ors. [(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 BVLNC MACMA 183 of 2016 Page 9 of 13 Dt: 14.12.2022

policies are taken immediately after the accidents to get compensation in a clandestine manner.

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."

18. In the case on hand, Ex.B2 cover note establish that it was

obtained at 04.00 p.m. on 07.04.2010. The accident was occurred at

about 05.45 a.m. on 07.04.2010 earlier to the cover note. Therefore, as

per date and time mentioned in Ex.B-2, the effectiveness of the

insurance policy starts only from the time and date as they are

specifically mentioned in the cover note, not not from an earlier point

of time. Unfortunately, the Tribunal committed a serious error on this

aspect by holding that Ex.B-2 came into force on the mid night of the

previous day, and as the accident was occurred at about 05.45 a.m,

the Insurance Company is liable to indemnify the owner of the crime

vehicle.

19. The Tribunal relied upon the judgments of the High Court of

Andhra Pradesh in United Insurance Company Limited Vs. Kaki

Prabhakar and New India Assurance Company Limited, Anantapur

Vs. B.Gopala. But the said judgments will not help the case of the BVLNC MACMA 183 of 2016 Page 10 of 13 Dt: 14.12.2022

claimant in view of Ex.B-2, which contained specific date and time.

Hon'ble Apex Court in National Insurance Company Limited Vs.

Smt.Sobina Iakai and others held 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 "

20. The Tribunal ignored cover note stating that in cover note it is

not clearly mentioned, when the proposal form was submitted, and

that the time of commencement of policy is not mentioned, and

therefore, it will come into force from the mid night of the previous day.

21. Perusal of Ex.B-2 clearly shows that it was issued on

07.04.2010 at about 04.00 p.m. It further establishes that cover note

was obtained clandestinely immediately after the accident, for the

reasons best known to the driver-cum-owner of the tractor-cum-trailer.

Therefore, when time is specifically mentioned in Ex.B-2 indicating

that it was obtained at about 04.00 p.m. on 07.04.2010, it shall be

held that the effectiveness of the insurance policy would start from the

time and date specifically incorporated in the cover note, and not from

an earlier point of time, particularly when there is no dispute about

the correctness of the date or time mentioned in the said cover note.

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22. Hence, the reasoning given by the Tribunal is against the

contents of Ex.B-2, and cannot be accepted.

23. The Tribunal did not consider the judgment of the Hon'ble Apex

Court. The Tribunal did not answer why the judgment of Apex Court

not applicable to the facts of the case, when Ex.B-2 specifically

mentions time and date. Therefore, the Tribunal has committed a

serious error in this regard. In that view of the matter, the order of the

Tribunal is liable to be set aside since the appellant insurance

company is not liable to indemnify the owner of the of the crime

vehicle, as there was no insurance coverage at the time of accident.

The claimant is entitled to recover the compensation amount awarded

by the Tribunal from the owner of the tractor-cum-trailer in the case.

Accordingly, this point is answered.

24. POINT No.2: To what relief?

In the light of findings on point No.1, I am of the considered

opinion that it is a fit case to set aside the order passed by the

Tribunal against the appellant insurance company.

25. In the result, the appeal is allowed, the impugned order against

the appellant, who is the 2nd respondent in the claim petition is set

aside. The claimant is entitled to recover the compensation amount BVLNC MACMA 183 of 2016 Page 12 of 13 Dt: 14.12.2022

awarded by the Tribunal from the owner-cum-driver of the tractor-

cum-trailer bearing No.AP27X 1367 and AP27X 1362, who is

1st respondent in the claim petition. There shall be no order as to

costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                      _____________________________
                                       B.V.L.N.CHAKRAVARTHI, J
14.12.2022

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 BVLNC                                   MACMA 183 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                M.A.C.M.A.No.183 OF 2016




                  14th December, 2022


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