Madras High Court
National Insurance Company ... vs Minor Uthirakumar on 18 January, 2021
C.M.A(MD)No.738 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.738 of 2011
and
M.P.(MD)No.3 of 2011
National Insurance Company Limited,
represented by its Branch Manager,
Thallakulam,
Madurai. ... Appellant/Second Respondent
Vs.
1.Minor Uthirakumar
rep. by mother & natural guardian
Renganayaki ... 1st Respondent/ Petitioner
2.Jeganathan ... 2nd Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, against the judgement and decree made in M.C.O.P.
No.28 of 2005, dated 19.07.2006, on the file of the Motor Accident
Claims Tribunal/ Chief Judicial Magistrate, Ramand.
For Appellant : Mr.R.Srinivasan
For Respondent No.1 : Mr.H.Lakshmi Shankar
For Respondent No.2 : Dismissed vide court order
dated 10.04.2019.
1/10
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C.M.A(MD)No.738 of 2011
JUDGMENT
Assailing the judgment and award passed by the Motor
Accident Claims Tribunal / Chief Judicial Magistrate, Ramanathapuram,
in MCOP No.28 of 2005, dated 19.07.2006, the Insurance Company has
filed this appeal.
2.The first respondent as a claimant, has filed MCOP.No.28
of 2005 claiming compensation of Rs.3,00,000/- for the injuries
sustained by him in the accident that has taken place on 24.05.2005.
3.It is the case of the claimant that on the fateful day, he was
travelling as a pillion rider in a TVS-Max-100 moped bearing
Registration No.TN 65 C 5997 from Chatrakudi to Valanadu, at that time,
a mini auto bearing Registration No. TN65 D 3854, which is owned by
the second respondent herein and insured with the appellant, drove it in a
rash and negligent manner and hit against the two wheeler. In the
accident, he sustained fracture and injuries and he was immediately taken
to Pioneer Hospital in Ramanathapuram. It is his specific case that the
accident had occurred only due to the negligence on the part of the driver
of the Mini Auto.
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C.M.A(MD)No.738 of 2011
4.The owner remains ex-parte and the claim was contested
by the appellant-insurance company, stating that on the date of the
accident i.e. on 24.05.2005, the vehicle was not insured and a policy was
taken only from 14.05 hours on 25.05.2005 and hence, they are not liable
to pay the compensation.
5.Before the Tribunal, on behalf of the claimant, two
witnesses were examined and 10 documents were marked. The appellant
insurance company examined one Akbar Ali, as R.W.1 and marked two
documents.
6. Upon consideration of evidence, the Tribunal came to the
conclusion that the accident has happened only due to the negligence of
the driver of the auto and awarded a compensation of Rs.87,000/- with
7.5% interest per annum. Challenging the award, the present Civil
Miscellaneous Appeal has been filed.
7.Mr.R.Srinivasan, learned counsel appearing for the
appellant would argue that Ex.R.1 and the evidence of R.W.1 would
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C.M.A(MD)No.738 of 2011
show that the vehicle was insured with the appellant insurance company
only from 14.05 hours on 25.05.2005 and the accident had occurred on
24.05.2005 at 12.00 hours and hence, no liability can be fastened on the
insurance company.
8.Per contra, Mr.H.Lakshmi Shankar, learned counsel
appearing for the first respondent placing reliance on the decisions
reported in 1988-ACJ-1119, 2000-ACJ-460 and the order of this court
passed in CMA No.3323 of 2011, dated 17.07.2020, would submit that
admittedly the insurer has taken the policy and also paid the premium
amount through cheque on 24.05.2005 and hence, the appellant cannot
be exonerated from paying the compensation in this case.
9.As stated above, the second respondent herein/ owner of
the vehicle remained ex-parte before the Tribunal and as per order 41
Rule 14(4), notice to the second respondent is dispensed with and he is
not entitled to be heard in this appeal.
10.The issue that arose for consideration is whether the
appellant/insurance company is to be fastened with the liability to pay the
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C.M.A(MD)No.738 of 2011
compensation, even though the policy would commence after the
accident claim.
11. It is useful to refer the decision of the Hon’ble Apex
Court reported in 1998(1) LW – 14 in the case of Oriental Insurance
Company Limited Vs. Sunitha Rathi and others, wherein, it is held:-
"2.The motor accident occurred on 10th
December, 1991 at 2.20 PM It was only thereafter
the same day at 2.55 PM that the insurance policy
and the cover note were obtained by the insured,
owner of the motor vehicle involved in the accident.
There is express mention in the cover note that the
effective date and time of commencement of the
insurance for the purpose of the Act was 10th
December, 1991 at 2.55 PM. The applicability of
the decision in Ram Dayal's case (supra) has to be
considered on these facts. In our opinion the
decision in Ram Dayal's case (supra) is
distinguishable and has no application to the facts
of this case. The facts of that decision show that the
time of issuance of the policy was not mentioned
therein and the question, therefore, was of
presumption when the date alone was mentioned
and not the time at which the insurance was to
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C.M.A(MD)No.738 of 2011
become effective on that date. In such a situation, it
was held in Ram Dayal's case (supra) that in the
absence of any specific time being mentioned, the
logical inference to draw was that the insurance
became effective from the previous mid-night and,
therefore, for an accident, which took place on the
date of the policy, the insurer became liable. There
is no such difficulty in the present case in view of
the clear finding based on undisputed facts that the
accident occurred at 2.20 PM and the cover note
was obtained only thereafter at 2.55 PM in which it
was expressly mentioned that the effective date and
time of commencement of the insurance for the
purpose of the Act was 10.12.1991 at 2.55 PM. The
reliance on Ram Dayal's case (supra) by the
Tribunal and the High Court was, therefore, mis-
placed, we find that in a similar situation, the same
view which we have taken, was also the view
in M/s. National Insurance Co. Ltd. vs. Smt.
Jikubhai Nathuji Dabhi & Ors. 1996 (8) SCALE
695, wherein Ram Dayal's case (supra) was
distinguished on the same basis.
3.It follows that the insurer cannot be held
liable on the basis of the above policy in the present
case and, therefore, the liability has to be of the
owner of the vehicle. However, we find that the
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C.M.A(MD)No.738 of 2011
High Court, without assigning any reason, has
simply assumed that the owner of the vehicle was
not liable and that the insurer alone was liable in the
present case. This conclusion, reached by the High
Court, is clearly erroneous. The liability of the
insurer arises only when the liability of the insured
has been upheld for the purpose of indemnifying the
insured under the contract of insurance. There is,
thus, a basic fallacy in the conclusion reached by
the High Court on this point."
12.In that case, the accident took place on 10.12.1991 at
2.20 p.m., whereas, the policy was taken on the same day at 2.55 p.m. In
the policy, it has been specifically stated that the policy would come into
force on 10.12.1991 at 2.55 p.m. The Tribunal and the High Court held
that the insurance company is liable to pay compensation, since the
policy was taken on the date of accident. The Hon’ble Apex Court held
that if the time and date is specifically mentioned, it will come into force
only from the date and not from the midnight of the day.
13.The same view was taken by the Hon’ble Apex Court in
1999- ACC - 439. A single judge of this Court in the judgment reported
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C.M.A(MD)No.738 of 2011
in 2004(1) CTC 401 has followed the decision of the Hon’ble Apex
Court cited supra.
14.In the light of the judgment of the Hon’ble Apex Court
and this Court, I am unable to agree with the decision referred by the
learned counsel appearing for the first respondent which are the
judgments of the High Court of Karnataka and Andrapradesh and Single
Judge of this Court.
15.In the matter on hand, admittedly, the accident had taken
place on 24.05.2005 at 12.00 hours, but the second respondent herein had
taken the policy, which was marked as Ex.R.1, commencing from
14.05 hours on 25.05.2005, which shows on the date of accident, the
vehicle was not insured with the appellant insurance company. However,
the Tribunal without properly appreciating the facts and the law, has
directed the Insurance Company to pay the compensation. Therefore,
the order of the Tribunal is liable to be set aside.
16.In the result, the Civil Miscellaneous Appeal is allowed
and the order passed by the Tribunal is set aside. It is open to the
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C.M.A(MD)No.738 of 2011
claimant to recover the award amount from the owner of the vehicle. It is
represented that the entire award amount has been deposited by the
insurance company. If the amount is not withdrawn by the first
respondent /claimant, the Tribunal is directed to refund the amount to the
appellant/Insurance Company. No costs. Consequently, connected
miscellaneous petition is closed.
18.01.2021
Index:Yes/No
Internet:Yes/No
rm
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Chief Judicial Magistrate,
(Motor Accident Claims Tribunal),
Ramanathapuram.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.738 of 2011
K.KALYANASUNDARAM, J.
rm
JUDGMENT MADE IN
C.M.A(MD)No.738 of 2011
18.01.2021
http://www.judis.nic.in
