Gujarat High Court
The United India Insurance Company Ltd vs Mangalbhai Chaturbhai Padhiyar on 16 April, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/88/2021 JUDGMENT DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 88 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/FIRST APPEAL NO. 88 of 2021
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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THE UNITED INDIA INSURANCE COMPANY LTD
Versus
MANGALBHAI CHATURBHAI PADHIYAR & ORS.
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/04/2024
ORAL JUDGMENT
1. By way of this Appeal, the Appellant-Insurance
Company has challenged the judgment and award
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dated 29.05.2018 passed by the learned Motor
Accident Claims Tribunal (Main), Anand in M.A.C.P.
No.269 of 2013. The ground of appeal inter-alia is
to the effect that the accident had occurred on
31.03.2013 at about 11.00 a.m. (in the morning) and
the same is not covered by the Insurance Policy since
it came into force at about 20.16 hours on
31.03.2013.
2. The matter was ADMITTED. Notice was issued to the
respondents. Though served, the respondents have
failed to appear. The respondents are not
represented by any Advocate on record.
3. Referring to the First Information Report and the
Panchnama, alongwith the written statement of the
Insurance Company, coupled with the evidence of the
injured claimant, learned advocate for the appellant
Mr. Maulik J. Shelat submitted that as per the
evidence of the claimant, the claimant was going on
foot in the morning at 11.00 a.m. on 31.03.2013 to
purchase buttermilk at the house of Vinubhai
Manubhai Padhiyar. Because of the heavy ongoing
vehicles on the road, the claimant was standing on
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the side of the road. At the outskirts of Village
Davol, Activa bearing Registration No.GJ-23-S-5261
driven by the respondent no.1, in a rash and
negligent manner and in excessive speed dashed the
legs of the claimant; the claimant fell down on the
side of the road and sustained fracture on the right
leg and suffered injuries on the body.
4. Learned Advocate for the appellant Mr. Maulik J.
Shelat submitted that the First Information Report
was registered, the complaint was given by the
claimant at the Borsad Town Police Station, District
Anand. The Panchnama was drawn, the First
Information Report was registered as I-C.R. No.37 of
2013, the panchnama was drawn on 31.03.2013
between 18.30 to 19.30 Hours. Thus, it is submitted
as per the Policy documents, the vehicle does not get
insurance coverage at the time of accident. The
insurance policy specifies of being in force on
31.03.2013 from 20.16 hours to the midnight of
20.03.2014. It is further submitted that since the
accident had occurred in the morning and the policy
had come into force in the evening time of 2016, the
policy would not cover the risk involved in the
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vehicle.
5. The Insurance Policy was produced at Exhibit 42 by
the claimants. The effective date of commencement
of the insurance for the purpose of the policy
coverage is shown as from 20.16 hours on 31.03.2013
for the vehicle with Registration No.GJ-23-S-5261.
The receipt date as per the Exhibit 42 is 29.03.2013,
and the coverage is specified as 20.16 hours of
31.03.2013 which has been shown as effective date
and time of commencement of the insurance policy.
The insurance date and time has been very
specifically noted as 31.03.2013 of 20.16 hours with
the date of expiry and time as the midnight of
30.03.2014.
6. Learned Advocate Mr. Maulik J. Shelat has placed
reliance on the decision of the Hon'ble Apex Court in
the case of New India Assurance Co. v. Bhagwati
Devi and Others reported in (1998) 6 SCC 534 where
the policy obtained on the date of accident is at
about 4.00 p.m. and the accident had occurred at
9.00 am on the very same day. The Hon'ble Apex
Court adopted the principle that in absence of
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contract to the contrary, an insurance policy becomes
operative from the previous midnight when bought
during the day following. It was held inapplicable
in the matter since a specific time for its purchase
was mentioned in the Policy. The Hon'ble Apex
Court relied on decision in the case of National
Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi reported
in (1997) 1 SCC 66 where the Bench had taken a
view that when there is a special contract mentioning
in the policy the time when it was bought, it would
be operative from that time and not fictionally from
the previous midnight. Here in this case the
Insurance Policy produced at Exhibit 42, specifies that
the Insurance Policy would be effective from 20.16
hours of 31.03.2013, while the accident had occurred
in the morning at 11.00 a.m. on 31.03.2013. Hence,
when the contract mentions the time, it becomes
operative from that time, thus it can be concluded in
the present set of facts on the basis of the Insurance
Policy at Exhibit 42, that the insurance was not
effective at the time of accident.
7. The Insurance Company had also taken a specific plea
in the written statement that the Policy of the Activa
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bearing Registration No.GJ-23-S-5261 was not in force
at the time of accident.
8. In that view of the matter, with the observations
supported by the Hon'ble Apex Court in the above
referred judgments when the policy specifies the time,
then it would be operative from that time only. The
evidence is clear on record to specify that the policy
was not in force at the time of accident. Hence, the
Insurance Company cannot be made liable to pay the
compensation amount as ordered by the learned
Tribunal.
9. In view of the aforesaid discussions, the Appeal is
allowed and the Insurance Company is exonerated
from the liability to pay the compensation as ordered
by the learned Tribunal in the judgment and award
dated 29.05.2018 passed by the learned Motor
Accident Claims Tribunal (Main), Anand in M.A.C.P.
No.269 of 2013.
10. In the result, the amount deposited by the
Insurance Company be refunded back to the
appellant-Insurance Company with accrued interest
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and if at all, the amount has been paid to the
claimant/s, the amount be recovered by the Insurance
Company. The insurance company is entitled to
recover the compensation amount from the Driver
and Owner of the vehicle bearing Registration No.GJ-
23-S-5261, - respondents no.1 and 2. In the
alternative, the claimant thus, is entitled to recover
the said amount and driver and owner of the Activa
- the respondents No.1 and 2.
11. In view of the above, the Appeal is allowed and
the judgment and award dated dated 29.05.2018
passed by the learned Motor Accident Claims Tribunal
(Main), Anand in M.A.C.P. No.269 of 2013 stands
modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
12. Resultantly, the Civil Application also stands
disposed of.
Sd/-
(GITA GOPI, J)
CAROLINE
