[Cites 11, Cited by 0]
Madhya Pradesh High Court
Hdfc Ergo General Insurance Co. Ltd Thr vs Abhishek Kushwah Thr Father Ramjivan @ ... on 2 February, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:4131
1 MA-1207-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 2 nd OF FEBRUARY, 2026
MISC. APPEAL No. 1207 of 2016
HDFC ERGO GENERAL INSURANCE CO. LTD THR
Versus
ABHISHEK KUSHWAH THR FATHER RAMJIVAN @ JIWANLAL
KUSHWAH AND OTHERS
Appearance:
Shri Bal Krishna Agrawal - Advocate for the appellant.
None for the respondents after issuance of notice by both the modes.
ORDER
This Miscellaneous Appeal under Section 173(1) of the Motor
Vehicles Act has been filed by the appellant-Insurance Company
challenging the impugned Award dated 26.08.2016 passed by the Member,
Motor Accident Claims Tribunal, Datia (hereinafter referred to as "the
Claims Tribunal") in Claim Case No. 117/2015 on account of exoneration
from liability.
2. Brief facts of the case are that on 11.05.2014 at about 2:00 PM,
Abhishek was travelling on a motorcycle with Pawan Kushwaha to a
relative's house. When they reached near the house of Rajaram Kushwaha on
Datia-Seonda Road at Indergarh, a red-coloured Mahindra tractor bearing
registration No. MP-32 AA-1832, coming from the Seconda side, was driven
rashly and negligently by non-applicant No. 1. The tractor came on the
wrong side of the road and violently collided with the motorcycle. As a result
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of the accident, Abhishek sustained grievous injuries, including a fracture of
his leg. Despite medical treatment and surgery, he suffered permanent
disability, and incurred medical expenses of about two lakh rupees. After
causing the accident, the tractor driver fled towards Datia. The accident was
promptly reported to the police by Hargovind. During investigation, the
police recorded statements of witnesses and, upon being fully satisfied,
found that the accident occurred due to the rash and negligent driving of
tractor No. MP-32 AA-1832. Consequently, the tractor and trolley were
seized. FIR was registered. After investigation, charge sheet was filed.
Thereafter, claimant filed claim petition before the Claims Tribunal seeking
compensation. Respondents (non-claimants therein) filed their reply and
denied all averments made in the claim petition.
3. After framing the issues and hearing the counsel for both the parties
as well as taking evidence of both the parties, Claims Tribunal awarded
compensation in favour of claimant.
4. Being aggrieved by the impugned award, learned counsel for the
appellant-Insurance Company submitted that the impugned award passed by
the learned Claims Tribunal is contrary to the facts, evidence available on
record, and the settled principles of law, and therefore deserves to be set
aside. The learned Claims Tribunal has erred in deciding Issue No. 3 against
the appellant-Insurance Company and in fastening the liability to pay
compensation upon it. The Tribunal failed to appreciate that, as per
Insurance Policy Ex. D/1, the offending vehicle was insured for the period
from 12.05.2014 to 11.05.2015, whereas the alleged accident occurred on
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11.05.2014. On the date of the accident, the insurance policy was not in
force, and therefore no liability could legally be fastened upon the appellant
Insurance Company. The learned Tribunal further erred in holding that the
offending vehicle was insured on the date of the accident on the ground that
the premium amount had allegedly been received by the agent on
08.05.2014. It is submitted that the said transaction was merely an agent
advance money transaction of Rs. 10,000/-, whereas the actual premium
amount was only Rs. 2,680/-. Hence, the said transaction cannot be treated as
payment of premium for insuring the offending tractor bearing registration
No. MP-32 AA-1832. The learned Tribunal also committed grave error in
ignoring the testimony of NAW-1 Shri Anand Shrivastava, who duly proved
the insurance documents Ex. D/1 and Ex. D/2, and in failing to properly
consider and apply the settled law and judicial precedents cited on behalf of
the appellant. Thus, on all counts, the impugned award is illegal, perverse,
and unsustainable in law and is liable to be set aside.
5 . Per contra, despite notice by both modes, no one is appeared on
behalf of respondents.
6. Heard learned counsel for the appellant. Perused the record of the
Claims Tribunal.
7. Moot question in this case is whether the insurance policy issued
in favour of owner of the offending vehicle was is existence at the time
of accident i.e. on 11.05.2014.
8. In the case of New India Assurance Co. Ltd. Vs Sita Bai and Ors,
2000 ACJ 40 wherein Hon'ble Apex Court has held in para No.6 and 7 as under
NEUTRAL CITATION NO. 2026:MPHC-GWL:4131
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:-
6. "The correctness and applicability of the judgment in Ram
Dayal's case (supra} came up for consideration before this Court
subsequently in a number of cases. ln.New India.Assurance Col
Ltd. Vs, Bhagwati Devi and Ors. - Civil.appeal No. 1550 of 1994,
decided on 10.2.1998. a three- Judge Bench of this Court relied
upon the view taken in National Insurance Co. Ltd. Vs. Jikubhai
Nathuji Dabhi (Smt) and Ors., [1997 (1) SCC 66], wherein it had
been held that if there is a special contract, mentioning in the
policy the time when it was bought, the insurance policy would be
operative from that time and not from the previous midnight as
was the case in Ram Dayal's case, where no time from which the
insurance policy was to become effective had been mentioned. It
was held that should there be no contract to the contrary, an
insurance policy becomes operative from the previous midnight,
when bought during the day following; but. in cases where there is
a mention of the specific time for the purchase of the policy. then a
special contract comes into being and tile policy becomes effective
from the time mentioned in the cover note/the policy itself. The
judgment in Jikubhai's case (supra) has been subsequently
followed in Oriental. Insurance Co. Ltd, Vs. Sunita Rathi &
Ors.. [1998 (1) SCC 365]. by a three-Judge Bench of this Court
also.
7. In the fact situation of this case since the commencement of
the policy at 2100 hours on 16.4.1987 was after the accident which
had occurred at 1000 hours on 16.4.1987, the Tribunal as well as
the High Court were wrong in burdening the appellant-insurance
Company, with any liability- under Section 92-A of the Motor
Vehicles Act by applying the law- laid down in Ram Dayal's ca.se.
which, on facts, had no application to this case. This case is
squarely covered by the judgment in Jikhubhai's case and the other
judgments following it as noticed above. The impugned order
against the appellant cannot thus be sustained. The same is hereby
set aside. The appeal consequently succeeds and is allowed insofar
as the appellant is concerned. No costs."
9. Further, in the case of National Insurance Co. Ltd Vs Sobina Iakai
and Ors. 2007 (2)CLJ(SC)202, wherein the Apex Court has held in para
Nos. 13 to 19 as under :-
" 13. The insurance policy and the motor renewal endorsement
were on record. Both these documents were produced and proved
by the appellant company. The Tribunal and the High Court have
seriously erred in ignoring these basic and vital documents and
deciding the case against the appellant company on the ground of
non-production of the Cashier and Development Officer. This
NEUTRAL CITATION NO. 2026:MPHC-GWL:4131
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manifestly erroneous approach of the High Court has led to
serious miscarriage of justice.
14. This Court had an occasion to examine the similar controversy
in the case of New India Insurance Company v. Ram Dayal (1990)
2 SCR 570. In this case, this Court held that in absence of any
specific time mentioned in the policy, the contract would be
operative from the mid- night of the day by operations of the
provisions of the General Clauses Act but in view of the special
contract mentioned in the insurance policy, the effectiveness of the
policy would start from the time and date indicated in the policy.
15. A three-judge Bench of this Court in M/s National Insurance
Co. Ltd. v. Smt. Jikhubhai Nathuji Dabhi (1997) 1 SCC 66 has
held that in the absence of any specific time mentioned in that
behalf, the contract would be operative from the mid-night of the
day by operation of provisions of the General Clauses Act. But in
view of the special contract mentioned in the insurance policy, it
would be operative from the time and date the insurance policy
was taken. In that case, the insurance policy was taken at 4.00 p.m.
on 25.10.1983 and the accident had occurred earlier thereto. This
Court held that the insurance coverage would not enable the
claimant to seek recovery of the amount from the appellant
company.
16. Another three-Judge Bench of this Court in M/s Oriental
Insurance Co. Ltd. v. Sunita Rathi (1998) 1 SCC 365 dealt with
similar facts. In this case, the accident occurred at 2.20 p.m. and
the cover note was obtained only thereafter at 2.55 p.m. The Court
observed that the policy would be effective from the time and date
mentioned in the policy.
17. In New India Assurance Co. vs. Bhagwati Devi [(1998 (6)
SCC 534], this Court observed that, in absence of any specific
time and date, the insurance policy becomes operative from the
previous midnight. But when the specific time and date is
mentioned, then the insurance policy becomes effective from that
point of time. This Court in New India Assurance Co. Ltd. v. Sita
Bai (1999) 7 SCC 575 and National Insurance Co. Ltd. v. Chinto
Devi (2000) 7 SCC 50 has taken the same view.
18. In Kalaivani & Ors. v. K. Sivashankar & Ors. [(JT 2001 (10)
SC 396], this Court has reiterated clear enunciation of law. The
Court observed that it is the obligation of the Court to look into the
contract of insurance to discern whether any particular time has
been specified for commencement or expiry of the policy. A very
large number of cases have come to our notice where insurance
policies are taken immediately after the accidents to get
compensation in a clandestine manner.
19. In order to curb this widespread mischief of getting insurance
policies after the accidents, it is absolutely imperative to clearly
NEUTRAL CITATION NO. 2026:MPHC-GWL:4131
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hold that the effectiveness of the insurance policy would start from
the time and date specifically incorporated in the policy and not
from an earlier point of time."
10. Considering the aforesaid verdict in the case referred to above and
upon careful perusal of the impugned award, it is evident from the Insurance
Policy (Ex. D/1) that the offending vehicle was insured for the period
commencing from 12.05.2014 at 00:01 hrs and valid till 11.05.2015 at
midnight. The policy clearly stipulates that the risk coverage commenced
only from 12.05.2014.
11. Admittedly, the accident in question occurred on 11.05.2014. Thus,
on the date and time of the accident, the insurance policy in respect of the
offending vehicle was not in force. Consequently, the owner of the offending
vehicle was not covered by any valid insurance policy at the relevant time.
12. In view of the above, this Court is of the considered opinion that the
Claims Tribunal committed a manifest error in holding that the insurance
policy was in existence on the date of the accident and in fastening liability
upon the Insurance Company. The findings recorded by the learned Claims
Tribunal on this issue are legally unsustainable and are hereby set aside.
13. Accordingly, the Insurance Company is exonerated from its liability
to pay compensation to the claimant. The Miscellaneous Appeal is, therefore,
allowed.
(HIRDESH)
JUDGE
*AVI*
