Bajaj Allianz General Insurance ... vs Tahmina Parveen
2021 Latest Caselaw 612 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     [Civil Miscellaneous Appellate Jurisdiction]
                             M.A. No. 131 of 2018
         Bajaj Allianz General Insurance Company Ltd. .... .. ...              Appellant
                                     Versus
         1.Tahmina Parveen
         2. Minnat Praveen
         3. Jannat Praveen
         4. Jinat Praveen
         5. Manoj Kumar Bhagat
         6. Kumod Kumar Singh
         7. I.C.I.C.I. Lombard General Insurance Co. Ltd.           .. ... ... Respondents
                          ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

      For the Appellant               :     Mr. Alok Lal, Advocate.
      For the Respondents             :
                          ..........
05/09.02.2021.

             Heard, learned counsel for the appellant.

Learned counsel for the appellant has assailed the impugned order dated 11.09.2017 passed by learned District Judge VI-Cum- Presiding Officer, Motor Accident Claims Tribunal-VI, Deoghar in M.V. Claim Case No.52/2015 wherein while adjudicating the claim application under Section 140 of the MV Act, 1988, the learned Tribunal has not considered the fact that the vehicle was insured before the Bajaj Allianz General Insurance Company Ltd. from 16.12.2014 to 15.12.2015 though accident took place on 05.12.2014 and in support of the same, learned counsel for the appellant has relied upon the judgment passed by the Apex Court in the case of New India Insurance Co. Ltd. vs. Bhagwati Devi and Ors., 1998 6 SCC 534, Oriental Insurance Co. Ltd. vs. Porselvi and Anr. 2009 15 SCC 116 and United India Insurance Co. Ltd. vs. Chandra Marandi, 2007 3 JCR 594 as well as passed by co-ordinate Bench of this Court in M.A. No.134 of 2005.

Learned counsel for the appellant has further submitted that there is delay of 88 days in preferring the appeal against the interim order and for the same, I.A. No.2285 of 2018 has been preferred, as such, the same may be condoned.

After hearing the learned counsel for the appellant and going through impugned order, it appears that interim order has been passed by the learned Tribunal mentioning the same which are reproduced herein:-

"64-VB. No risk to be assumed unless premium is received in advance:- (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.

(2) For the purpose of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer.

Explanation: Where the premium is tendered b postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be.

(3) Any refund of premium which may become due to an insured on account of the cancellation of a policy or alteration in this terms and conditions or otherwise shall be paid by the insurer directly to the insured by a crossed cheque or by postal money and a proper receipt shall be obtained by the insurer form the insured and such refund shall in no case be credited to the account of the agent.

(4) where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or dispatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of the collection including bank and postal holidays.

(5) The Central Government may, by rules, relax the requirements of sub- section(1) in respect of particular categories in insurance policies.

The words used in sub-section(1) of section 64VB of Insurance Act, 1938, "No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him", are quite important. These words go to indicate the time of the insurance, i.e., the time when the payment is made, is the time when the premium of the insurance is paid and the risk is assumed only form then by the Insurance Company. A bare reading of sub-section(2) of section 64VB clearly indicates that risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Thus the assumption of risk could be only from the date of receipt of premium whether by cash or by cheque. In the present case as it is clear from a bare reading of the insurance policy issued by Bajaj Allianz General Insurance Co. Ltd. that policy was issued on 03.10.2014 at 15.42 hrs. and it goes without saying that the insurer cannot issue insurance policy without getting the insurance premium. Accordingly I have no hesitation to hold that the date of the receipt of the premium by the insurance company directly shall be considered to be the date of commencement of the policy and as such O.P. No.4 is liable to pay the ad interim compensation to the claimants. Here it goes without saying that the insurance company (O.P. No.4) can recover the said amount from the insured if any violation of the terms and conditions of the insurance policy is found in the final claim preferred by the claimants u/s 166 M.V. Act."

Learned Tribunal has categorically taken note of the fact that Bajaj Allianz General Insurance Company Ltd. has received the premium on 03.10.2014 at 15.42 hrs., but no evidence has been brought on record by Bajaj Allianz General Insurance Company Ltd. to establish that owner of the offending vehicle has admitted this position that even though the premium was received by the Bajaj Allianz General Insurance Company Ltd. on 03.10.2014 at 15.42 hrs., but his vehicle was to be insured for the period from 16.12.2014 to 15.12.2015. As it is not the stage where the evidence has to be adduced and this fact is a crucial fact to be adjudicated for liability of the Insurance Company or the insured/owner of the offending vehicle, in such view of the matter the learned Tribunal has rightly directed the Insurance Company to indemnify Rs.50,000/- as ad-interim compensation and Insurance Company shall recover the said amount from the insured, if any violation of terms and conditions of the Insurance Policy is found in the final claim preferred by the claimant under Section 166 of the MV Act.

Nothing has been brought on record by learned counsel for the appellant to

establish that insurance coverage of the vehicle from 16.12.2014 to 15.12.2015 is admitted position between the Insurance Company and the owner/insured and admittedly this fact has to be adjudicated on the pleading of the parties by the learned Tribunal as per record, which has not been disputed by the Insurance Company that the money/premium has been received by the Insurance Company on 03.10.2014 at 15.42 Hours. i.e. two months prior to the alleged date of occurrence i.e. 05.12.2014.

Under the aforesaid circumstances, the judgment which has been referred before this Court is not applicable in the present case.

So far limitation is concerned, this Court is also not inclined to allow the limitation petition filed for condonation of delay of 88 days in preferring the appeal as no sufficient reason has been assigned by the appellant to condone such delay, rather in a benevolent legislation, it was incumbent upon the Insurance Company to pay the said amount on protest, but in such type of litigation the poor sufferer is the victim of the accident, as such, I am not inclined to condone the delay and the same is accordingly dismissed. I.A. No.2285 of 2018 is hereby disposed of.

Accordingly, the instant Miscellaneous Appeal is dismissed. Statutory amount deposited by the appellant- Insurance Company shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a reasonable time so as to indemnify the award.

(Kailash Prasad Deo, J.) R.S.