Jayamma vs C S Nagaraja Rao
2022 Latest Caselaw 13169 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF NOVEMBER, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.No.6030/2014 (MV-I)

BETWEEN

JAYAMMA
W/O BOREGOWDA
AGED ABOUT 54 YEARS
R/AT KETHOHALLI
MAYAGANAHALLI POST
KASABA HOBLI
RAMANAGARA TALUK AND DISTRICT-562159
                                              ...APPELLANT
(BY SRI SHANTHARAJ K, ADVOCATE)

AND

1.    C S NAGARAJA RAO
      S/O C R SHIVARAMAIAH
      AGED MAJOR
      R/AT NO. 151, CHAKRABHAVI VILLAGE
      MADBAL HOBLI
      MAGADI TALUK-562158

2.    THE MANAGER
      TATA AIG GENERAL INSURANCE COMPANY
      II FLOOR, J P & DEVI JUMBO
      KESHAVA ARCADE, NO.69, MILLERS ROAD
      BANGALORE-560052
                                         ... RESPONDENTS

(BY SRI B N GOPAL KRISHNA, ADVOCATE FOR R1;
 SRI H S LINGARAJ, ADVOCATE FOR R2)
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     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.07.2014
PASSED IN MVC NO.340/2010 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, RAMANAGARA AND ETC.


     THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                            JUDGMENT

This appeal is filed by the claimant challenging the

judgment and award dated 01.07.2014 passed in MVC

No.340/2010 on the file of the Additional Senior Civil Judge,

Ramanagara ('the Tribunal' for short).

2. heard the learned counsel appearing for the

appellant and the learned counsel appearing for the respective

respondents.

3. The factual matrix of the case of the claimant before

the Tribunal is that she met with an accident on 04.03.2020 at

about 6.30 p.m. when she was walking near Kethohalli bridge,

at that time, the driver of the luggage auto came in a rash and

negligent manner and dashed against the claimant as a result,

she suffered the grievous injuries and she was shifted to the

hospital. The claimant in order to substantiate her claim

examined herself as PW1 and also examined one doctor as PW2

and got marked the documents at Ex.P1 to P7. On the other

hand, the respondents examined one witness as RW1 and got

marked the documents at Ex.R1 to R3. The Tribunal after

considering both the oral and documentary evidence awarded

the compensation of Rs.29,500/- and also fastened the liability

on the insured contending that only cover note was issued and

after issuance of cover note the policy was not taken and cover

note was also cancelled. Hence, the present appeal is filed.

4. The very contention of the counsel for the claimant

that the she had suffered bifrontal fracture (right and left) of

skull and the compensation awarded is very meager and the

counsel further submits that the cover note was issued for a

period of one year i.e., from 04.05.2009 and it will expire on

03.05.2010 and in the meanwhile, the accident was occurred

and when the cover note was valid for a period of one year, the

Tribunal ought not to have fastened the liability on the insured

and committed an error in exonerating the liability of the

Insurance Company hence, it requires interference.

5. Per contra, the counsel for the Insurance Company

would vehemently contend that the cover note was issued in

terms of Ex.R2 and there is a specific clause in the cover note

that the period of validity of this cover note will expire on the

completion of 60 days from the date of issue of cover note and

in the meanwhile, the cover note was also cancelled. In support

of his argument, he relied upon the judgment of the Delhi High

Court in the case of ORIENTAL INSURANCE CO AND OTHERS

vs VINOD KUMAR AND OTHERS dated 23.04.2007 and

brought to notice of this Court paragraph 35 wherein the Delhi

High Court comes to a conclusion that when the cover note

comes to an end by efflux of time and ceases to be certificate of

insurance or policy of insurance after 60 days. Therefore, in

case certificate of insurance or policy of insurance is not issued

within 60 days of the issuance of the cover note, Section 149(1)

of the Act will not apply after expiry of the said period.

Thereafter, the Insurance Company will not be liable to make

payment to third parties as there is no certificate of insurance.

A certificate of insurance and insurance policy in the form of a

cover note has expired by efflux of time. Thus, the question of

termination, cancellation and avoidance does not arise. The

counsel relying upon the said judgment brought to notice of this

Court that the cover note was also cancelled and the same was

not valid as on the date of the accident hence, the Tribunal has

rightly fastened the liability on the insured.

6. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material available

on record it discloses that it is the case of the claimant that she

met with an accident on 04.03.2010 and sustained injuries and

immediately after the accident, the injured did not go to the

hospital and in the claim petition the claimant claims that the

accident was took place on 04.03.2010 and the compalint was

given on 10.03.2010 hence, there was a delay of 6 days in filing

the complaint. Apart from that the wound certificate which has

been relied upon is discloses that the injured went to the

hospital on 06.03.2010 at about 5.45 p.m. and no doubt, the

history was given as RTA on 04.03.2010 and wound certificate

also discloses that injury No.1 to 3 are simple in nature and

injury Nos.4 is grievous in nature and the injured was also went

to NIMHANS hospital and CT scan report shows that she had

bifrontal fracture (right and left) of skull and admitted to the

Global hospital and the same is marked as Ex.P4 and the same is

in respect of 01.06.2011 and discharged on 02.06.2011 and

history is also given as omitting and loose stools and not in

respect of accidental injuries and the same is also almost after

one year 3 months and hence, the Tribunal has rightly discussed

in detail with regard to both the oral and documentary evidence

available on record and except the wound certificate at Ex.P3 no

other material is placed before the Tribunal to show that the

nature of injury was sustained in the said accident. When such

being the case, the Tribunal has rightly awarded the

compensation of Rs.29,500/- which includes pain and sufferings,

loss of income during laid up period and also loss of amenities.

Hence, I do not find any grounds to enhance the same in the

absence of cogent evidence before the Court with regard to the

disability or the medical evidence to show that the injured was

hospitalized for a longer period.

7. Now coming to the aspect of liability is concerned,

the Tribunal comes to the conclusion that the cover note was

cancelled before the accident and document also relied upon by

the Insurance Company shows that admittedly the cover note

was issued and no specific certificate was issued and also the

document at Ex.R3 is very clear that the same is valid for a

period of two months and within the time of two months, no

certificate is issued by the Insurance Company. When such

being the matter, the Delhi Court also in the judgment referred

supra comes to the conclusion that if the cover note comes to

end by efflux of time, the Insurance Company is not liable to

make payment and the Delhi High Court referred the judgment

of the Apex Court in the cases of Inderjit Kaur and Rula while

coming to the such conclusion and in the case on hand also

when the cover note was issued and no certificate was issued

and when the contract between the parties are also very explicit

that the cover note is valid only for a period of two months and

the same has not been followed by certificate, the Tribunal has

rightly comes to the conclusion that the insured is liable to pay

the compensation hence, the order of the Tribunal does not

require any interference.

8. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

The Registry is directed to send the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

SN