Jammu & Kashmir High Court

Shafqat Wani Age 46 Years vs Universal Sompo General Insurance Co. ... on 22 October, 2024

 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU

                                               Reserved on:  15.10.2024
                                                Pronounced on: 22.10.2024

Mac App No. 135/2020

Shafqat Wani Age 46 years                                .....Appellant(s)
S/O Mohd. Ramzan Wani,
R/O Ward No. 8 Rajouri
Tehsil & District Rajouri



                    Through: Mr. S. H. Rather, Advocate.

               Vs

1. Universal Sompo General Insurance Co. Ltd.
   A-313, 2nd Floor NMIFD Complex, Karan Market Jammu.

2. Shahzad Ahmed Malik Age 10 years
   S/O Sh. Parvez Ahmed Malik
   R/O Degree College Rajouri
   (Respondent No. 2 being minor through his father
   Sh. Parvez Ahmed Malik)
                                                      ..... Respondent(s)

                    Through: Mr. Baldev Singh, Advocate for R-1.
                             Mr. Vishnu Gupta, Advocate for R-2.

CORAM:       HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                            JUDGMENT

01. The respondent No. 2 - Shahzad Ahmed Malik (minor) aged

ten (10) years (hereinafter called, „claimant') through his

father laid a claim petition in terms of Section 166 of the

Motor Vehicles Act, 1988 claiming compensation for the

critical injuries suffered by the injured-respondent No. 2

resulting into disability, in a vehicular accident having taken

place on 16.09.2012 at Degree College Rajouri due to rash

and negligent driving of Motor Cycle bearing Chasis No.

MBLJA05EKC9H11655 by the appellant herein.

02. The claim was preferred against the respondent No. 1 -

Shafqat Wani (appellant herein), who was driver and owner of

the offending vehicle and against the respondent No. 2 -

Universal Sompo General Insurance Co. Ltd. (respondent No.

1 herein) with whom the offending vehicle was claimed to

have been insured.

03. The learned Additional District Judge, Rajouri exercising the

powers of Motor Accidents Claims Tribunal (hereinafter

referred to as the, "the Tribunal") vide award dated

27.02.2020 in the claim petition titled - "Shahad Ahmed

Malik vs Shafqat Wani & Anr." granted compensation of

Rs. 3,20,000/- along with pendent lite and future interest @

6% per annum till realization except under the head of loss of

future income in favour of the claimant.

04. The Tribunal, however, held that since on the date of accident

i.e. 16.09.2012, the offending vehicle was not insured with

the respondent-insurer, as such, the Insurance Company was

not liable to indemnify the insured and the driver-cum-owner

of the offending vehicle (hereinafter called, "insured") was

directed to make payment of the awarded amount within a

period of 45 days from the date of passing of the award.

05. The driver/owner of the offending vehicle, namely, Shafqat

Wani (insured) having been aggrieved of the award with

regard to fastening the liability to pay the compensation on

him preferred the instant appeal in terms of Section 173 of

the Motor Vehicles Act, 1988 against the award dated

27.02.2020 (hereinafter called, "the impugned award").

06. The appellant has assailed the impugned award on the

grounds that the award has been passed against the

appellant without application of mind and being perverse is

not sustainable and is liable to be set-aside; that the finding

of the Tribunal was factually incorrect, inasmuch as, the

vehicle in question was purchased on 15.09.2012 and it was

insured on the same day with the respondent-insurer who

issued a Cover Note dated 15.09.2012 itself and a perusal of

the Cover Note reveals that the period of insurance started

from 15.09.2012 at 10:10 am and that the accident had

occurred on 16.09.2012 during the period when it was

admittedly insured with the respondent-insurer, as such, the

Insurance Company was liable to make payment of the

awarded amount; that the contract of insurance between the

appellant and the respondent-insurer was completed on

15.09.2012 at 10:10 am when the Insurance Company

received and accepted the premium and issued the Cover

Note, as such, the accident occurred on 16.09.2012 was fully

covered within the period of the insurance and the Insurance

Company cannot escape its liability to make the payment of

awarded amount on account of some negligence on its own;

that the appellant had not been issued any other document

except Cover Note and according to which the period of

insurance had started on 15.09.2012, as such, the Tribunal

by holding that the vehicle in question was not insured with

the respondent-insurer, on the date of accident, committed

miscarriage of justice and, as such, the award was liable to be

set-aside.

07. Learned counsel for the appellant while arguing in line with

the assertions made in the memorandum of appeal, would

argue that the finding of the Tribunal was beyond the

pleadings and the issues framed and that the insurance of the

vehicle in question was completed much before the alleged

accident and this vital fact of the matter was not specifically

disputed by the respondent-insurer, as such, no issue was

framed with respect to the fact that the vehicle in question

was not insured with the Insurance Company at the time of

accident and in absence of such an issue the finding of the

Tribunal was beyond jurisdiction and in violation of the

principles of natural justice. He prayed that the award to the

extent of fixing liability on the appellant-insured, be set-aside

and the liability be fixed on the respondent-insurer for

making payment of the compensation to the respondent-

claimant.

08. Learned counsel for the respondents, on the other hand,

argued that the Tribunal in the impugned award has observed

that the offending vehicle was insured with the respondent-

insurer vide Policy No. 2312/52569705/00/000 with period

of insurance as 17.09.2012 to 16.09.2013 whereas the alleged

accident was stated to have taken place on 16.09.2012, as

such, the date of accident was not covered within the period

of the policy of insurance and submitted that the Tribunal

has not committed any illegality while granting compensation

and fastening the liability for payment of compensation on

appellant-insured, the owner of the offending vehicle, instead

of respondent-insurer.

09. The short controversy that falls for consideration of this Court

is that whether the Cover Note issued by the authorized

person on behalf of the respondent-Insurance Company

insuring the offending vehicle owned by the appellant on

15.09.2012 can be considered as against the policy of

insurance which shows the offending vehicle having been

insured with effect from 17.09.2012 to 16.09.2013.

10. The Cover Note issued under No. USGIA-0001194887 dated

15.09.2012, shows that a fresh vehicle Splendor Motor Cycle

with Chassis No. 11655 and Engine No. 11693 was insured in

the name of the insured/appellant-Shafqat Wani as owner of

the vehicle with a premium of Rs. 1360.05 at Rajouri on

15.09.2012 at 10:10 am.

11. It is not understandable, as to how pursuant to this Cover

Note, the Policy No. 2312/52569705/00/000 was issued by

the respondent-insurer w.e.f. 17.09.2012.

12. Section 145(b) of the Motor Vehicles Act, 1988 will be

relevant to be extracted for convenience as under:-

"145(b). "certificate of insurance" means a certificate issued by an authorised insurer in pursuance of sub-section (3) of section 147 and includes a cover note complying with such requirements as may be prescribed, and where more than one certificate has been issued in connection with a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as the case may be."

A bare perusal of the aforesaid provision, makes it

abundantly clear that a 'Certificate of Insurance' means a

certificate and includes a Cover Note complying with such

requirement as may be prescribed, and where more than one

certificate has been issued in connection with a policy, or

where a copy of a certificate has been issued, all those

certificates or that copy, as the case may be are included in

the 'Certificate of Insurance'.

13. The respondent-insurer has not clearly denied having issued

the Cover Note on 15.09.2012, therefore, the Cover Note for

all practical purposes is a contract between the insured and

the insurer. In this view of the matter, the insurer is liable to