Manager vs Makho Devi & Others
2021 Latest Caselaw 841 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
          (Civil Miscellaneous Appellate Jurisdiction)
                 M.A. No. 233 of 2012
                          ........

Manager, National Insurance Company Ltd.& Anr. ..... Appellants Versus Makho Devi & Others ..... Respondents

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

For the Appellant             :   Mr. G. C. Jha, Advocate.
For the Respondent No.3      :    Mr. Anil Kumar Singh, Advocate.
For the Respondent Nos. 1 &2 :    Mr. Suchendra Prasad, Advocate.
                             :    Mr. Nehru Mahto, Advocate.
                               ........
18/22.02.2021.

Learned counsel for the appellant has submitted that pursuant to the notice dated 01.12.2020, respondent no.3 owner of the offending vehicle has already put his appearance and the notice upon respondent no.4 with regard to driver is not required, as such, the matter may be heard on merits.

Heard, learned counsel for the appellant, Mr. G. C. Jha and learned counsel for the respondents, Mr. Anil Kumar Singh, Mr. Suchindra Prasad and Mr. Nehru Mahto.

The National Insurance Company Limited has preferred this appeal against the award dated 21.09.2012 in Claim Case No.76/2003 passed by learned 5th District Judge-cum-Presiding Officer, Motor Vehicle Accident Claims Tribunal (M.V.A.C.T.), Hazaribagh whereby the learned Tribunal has granted compensation to the claimants namely, Makho Devi, W/O Raha Mahto and Raha Mahto, S/o Mallu Mahto to the tune of Rs.1,62,000/- along with interest @ 6% per annum w.e.f. 24.05.2007.

Learned counsel for the appellant has submitted that learned Tribunal has wrongly considered issue no. (iv) but gave a wrong finding, as such, this Court may appreciate the evidence brought on record and allow right to recover in favour of the Insurance Company, as at the time of accident on 12.08.2002, the vehicle was not insured, which was insured on 12.08.2002 at 12.57 P.M. for the period from 12.08.2002 to 11.08.2003, as such, finding recorded by the learned Tribunal regarding the issue, whether the offending vehicle was duly insured with the O.P. No.2 at the time of the accident?

The Tribunal has given wrong finding, on the basis of the fact and obtained on the basis of fraud by suppressing the fact by the owner of the offending vehicle i.e. BR20B-1505.

Learned counsel for the appellant has submitted that though appeal has been preferred on several grounds but in view of subsequent change, the appellant is not pressing other grounds including quantum of Award.

Learned counsel for the respondents has submitted that learned Tribunal has rightly decided the issue No. IV at para-14 of the impugned judgment, which may kindly be perused and taken note of.

Considering the same, the same is taken note of here by reproducing the same.

"14. ISSUE NO.IV:- This is the most contentious issue between the parties. The Insurance Company has pleaded that there was no valid insurance in favour of the owner of the vehicle at the hours, which was relevant to the motor accident. In order to substantiate its plea, the Insurance Company has examined a witness also. This witness is O.W.1 Rana Arun Kumar Singh, who is Development Officer in National Insurance Company. He has stated in his examination-in-chief that offending Truck was insured with National Insurance Company. This witness has further stated that the vehicle was 'covered' under the insurance on 12-08-2002, which was operational from 12.57 hours. It was valid up to midnight of 11-08-2003. He has disclosed the policy number in his deposition. The Insurance Paper has been marked Ext.A. This official witness has been cross-examined at length by the claimant. He has stated that 'official hours' of his office is from 10.00 A.M. to 5.00 P.M. The policy had been issued on that day on 11.00 A.M. He has further explained that earlier policy paper of Truck owner Subhash Chandra Singh was not issued from this Insurance Company (Cross: Para 3). He has further explained that the time of insurance starts when the premium is deposited. He cannot recollect as to whether the owner of the offending vehicle, namely, Subhash Chandra Singh has come to his office for the purpose of insurance or not. I find that time of occurrence/motor accident has been entered in the FIR as 8.10 A.M. The date of occurrence in the FIR has been entered as 12- 08-2002. I also find that the period of insurance has been shown

from 12.57 P.M. on 12-08-2002 to midnight of 11-08-2003. The date of starting of the insurance has been mentioned as '12-08- 2002', which is the date of occurrence itself. Therefore, there is a difference of approximately four hours between the time of occurrence and the initial period of cover of insurance: The Insurance Company wants to escape from its liability due to this lapse/span of approximately four hours: Being a responsible Officer of the Insurance Company, O.W.1, namely, Rana, Arun Kumar Singh ought to have explained everything warranting confusion in regard to initial point of insurance cover. He could not give satisfactory answers to the cross-examiner vide cross- examination Para 2, 3 and 4. Therefore, an adverse inference shall be drawn against the Insurance Company. The Insurance Company cannot escape its liability only on technical ground of span of four hours only. For all practical purposes the insurance paper shall be deemed to be valid on the date and time of the occurrence. In this way, I find and hold that the vehicle was duly insured with National Insurance Company on the date and time of the occurrence. Accordingly, this issue is disposed of."

Learned counsels for the claimants have fairly submitted that they have not preferred any appeal for enhancement of the award.

Considering the rival submissions of the parties, looking into fact and circumstance of the case, the dispute is only with regard to time of accident and time of Insurance. It appears that on 12.08.2002, the vehicle met with an accident, and FIR was lodged at 8.10 AM on 12.08.2002. The Insurance Policy was issued by the Insurance Company after taking premium on same date i.e. 12.08.2002 at 12.57 P.M.

This Court perused the impugned award and found that no evidence has been brought on record by the Insurance Company, whether the said offending vehicle i.e. BR20B -1505 was earlier insured for the period from 12.08.2001 to 11.08.2002 before the same Insurance Company i.e. National Insurance Company Limited or not? or whether this vehicle was first time insured by the National Insurance Company Limited-appellant on 12.08.2002?

This Court has examined both the hypothesis, if the vehicle was already insured before the Insurance Company for the previous year, then

the Insurance Company cannot say that the vehicle was not insured for the period and to this Section 64-VB of the Insurance Act, completely gives a protection to the insured owner. The second postulation is that if the vehicle is insured first time by the National Insurance Company on 12.08.2002 at 12.57 P.M. then certainly there is lapse on the part of the Insurance Agent or Officer. If a vehicle is insured for the first time, the Officer of the Insurance Company or the Agent used to take the chassis number on a sheet after proper inspection of the vehicle, but no evidence has been brought on record by the Insurance Company, that this vehicle was insured for the first time. Further, if the vehicle was standing at the place of the accident, the FIR lodged at 8.10A.M. on 12.08.2002 then how the Insurance Policy was issued at 12.57 P.M. by the Insurance Company. This shows that agent has taken money or Officer has taken money for Insurance of the vehicle, but they are not diligent in issuing the Insurance Policy, as O.P.W.-1, Rana Arun Kumar Singh, Development Officer of the National Insurance Company has admitted that office hours is from 10.00 A.M. to 5.00 P.M. meaning thereby whatever the laches is there, the laches is on the part of the Insurance Company in issuing policy paper.

Accordingly, this Court does not find any merit in the appeal preferred by the Insurance Company, accordingly the appeal is hereby dismissed.

Since no appeal has been preferred by the claimants for enhancement of the award, as such, this Court is not interfering with the quantum of compensation.

The statutory amount deposited by the Insurance Company for preferring the appeal shall be transferred to the executing court within a period of four weeks from today and the balance amount shall be paid by the Insurance Company along with the interest in terms of the award passed by the learned Tribunal within a reasonable period as the occurrence is of dated 12.08.2002 and the poor sufferer are the parents of the deceased.

(Kailash Prasad Deo, J.) Jay/-