Karnataka High Court
T. Dinakar vs P.J. Jagadish And Ors. on 16 April, 1997
Equivalent citations: 2000ACJ228, 1998 A I H C 625, (1999) 1 ACC 288, (2000) 1 ACJ 228, (2000) 2 TAC 586
JUDGMENT Hari Nath Tilhari, J.
1. These appeals arise from a common judgment and award dated 30.8.1993, given by the Motor Accidents Claims Tribunal, Dakshina Kannada, Mangalore (Mr. S.B. Chanal) Member & I Additional District Judge, Mangalore in Motor Vehicle Case Nos. 94, 205 and 256 of 1989, whereby the Tribunal has awarded compensation to the tune of Rs. 1,16,000 in M.V.C. No. 94 of 1989 in favour of claimants of that case to be shared equally and compensation to the tune of Rs. 2,08,000 in M.V.C. No. 205 of 1989 in favour of the claimant jointly against respondent Nos. 1 to 3 in the case and for a sum of Rs. 30,400 in M.V.C. No. 256 of 1989, but it directed the insurance company to indemnify the owners of the vehicle and fastened the liability for payment of the compensation on the respondents in each motor vehicle case, jointly and severally. The amount of compensation in each case has been awarded as mentioned above with interest at the rate of 6 per cent per annum from the date of application till the date of payment or deposit of the compensation money.
2. Appeal No. 2013 of 1993 and the Appeal No. 2297 of 1993 arise out of M.V.C. No. 256 of 1989. Appeal No. 2013 of 1993 has been filed by the claimant for enhancement of compensation while the Appeal No. 2297 of 1993 and the other two appeals M.V.C. Nos. 2296 and 2298 of 1993 have been filed by the United India Insurance Co. Ltd. and it may be clarified that Appeal No. 2296 of 1993 arises from M.V.C. No. 94 of 1989 while Appeal No. 2298 of 1993 arises from M.V.C. No. 205 of 1989. As mentioned earlier, Appeal Nos. 2296, 2297 and 2298 of 1993 which have been filed by the insurance company in all these three cases raise one common question of law and fact as to the liability of the insurance company with reference to the compensation awarded in the three motor vehicle cases as to whether the insurance company, appellant, is liable to pay the amount under the award to the claimants? While Appeal No. 2013 of 1993 relates to the question of enhancement of the compensation awarded therein.
3. Except in M.V.C. No. 256 of 1989, in which Appeal No. 2297 of 1993 has been filed by the insurance company, the claimant had filed Appeal No. 2013 of 1993, in other two motor vehicle cases- M.V.C. No. 94 of 1989 and M.V.C. No. 205 of 1989, giving rise to Appeal Nos. 2296 and 2298 of 1993, no cross-appeal or cross-objection has been filed by other claimants in those cases, nor by the other respondents.
4. According to the facts of the case, on 9.1.1989 at about 5 p.m. the oil tanker bearing No. CNX 6543 which was driven by the driver thereof on N.H. 48 leading from Padil to Kannoor on Mangalore-B.C. Road, was being driven rashly and negligently and dashed against Padmanabha and also against one Ramananda Shenoy, husband of claimant No. 1 in M.V.C. No. 205 of 1989, who was father of petitioner Nos. 2 and 3 and son of petitioner No. 4. It also dashed against the motor cycle bearing No. CNO 1889 on which the claimant Dinakar of M.V.C. No. 256 of 1989 was a pillion rider, though the said motor cycle was being driven on the correct side. According to the claim of the claimants in these petitions, Padmanabha who was the son of the claimant in M.V.C. No. 94 of 1989 died on the spot and thereafter the said oil tanker according to the claimants case bearing No. CNX 6543, went ahead on its wrong side and as mentioned earlier dashed against the motor cycle thereby caused grievous injuries to the person of said Manel Ramananda Shenoy the rider of the motor cycle and the pillion rider of the motor cycle, namely, Dinakar, claimant in M.V.C. No. 256 of 1989, Dinakar was thrown away. He had suffered severe grievous injuries and suffered permanent disability while Padmanabha and Ramananda Shenoy sustained grievous injuries to their persons and the vital parts of the body and succumbed to the same. The claim petition, that is, M.V.C. No. 94 of 1989 had been filed by the heirs of Padmanabha, claiming compensation to the tune of Rs. 1,50,000 from the respondents in that case, while the legal representatives of Ramananda Shenoy filed M.V.C. No. 205 of 1989 and made a claim seeking compensation to the tune of Rs. 10,00,000 and the injured Dinakar filed claim petition M.V.C. No. 256 of 1989 claiming a compensation to the tune of Rs. 1,00,000 for the injuries sustained by him and resulting in his permanent disability. The tanker which caused accident is alleged to have been insured with United India Insurance Co. Ltd., Surathkal, which has been impleaded as respondent in all the cases. In addition to the insurance company, the driver and owner of the oil tanker involved in the accident have also been impleaded as respondents.
5. On notice having been received, the respondents filed written statement and denied the allegations made in all the claim petitions. They denied the allegation that driver of the involved oil tanker drove the same rashly and negligently at a highly excessive speed. They denied the earning capacity and good health of the deceased persons with reference to M.V.C. Nos. 94 and 205 of 1989, and of injured person in M.V.C. No. 256 of 1989. Many other pleas were taken by the respondents. The parties denied the rashness and negligence on the part of the driver. They denied that the tanker hit against the electric pole. They also denied that the deceased had any external injuries or that deceased Padmanabha and Ramananda Shenoy did die because of the impact of accident, or that pillion rider Dina-kar received any injuries due to alleged accident. They asserted that there was no direct or indirect nexus between the oil tanker and the alleged mishap. It has been alleged by the owner of the involved tanker that the said oil tanker was purchased on 27.3.1984 and it was subject to a hire-purchase agreement with the Karnataka Bank, Pachanady Branch, Mangalore and it was insured with the respondent insurance company and its insurance policy was renewed every year with effect from 1984. The case of the respondent owner has been that since the hire-purchase agreement was discharged in the beginning of January, the Karnataka Bank did not remit the amount for renewal of insurance for the year 1989. The owner of the oil tanker remitted the insurance policy amount by pay order for Rs. 2,895.80 on 7.1.1989 of Karnataka Bank, Pachanady Branch, Mangalore vide pay order No. 062854 to the insurance company, Surathkal Branch, which had been received by the insurance company and encashed. The owner of the tanker further asserted that on 7.1.1989 along with a covering letter the pay order aforesaid dated 7.1.1989 had also been sent under certificate of posting to the insurance company respondent, which had been accepted without demur and the owner produced the copies of the pay order and the covering letter and the certificate of posting. The owner of the tanker further alleged that on 26.1.1989, the owner had informed and brought the above mentioned facts to the notice of the Regional Manager, Divisional Manager and Branch Manager of the insurance company under registered post with acknowledgement due. It had further been alleged that thereafter the insurance company on 31.1.1989 called upon the owner of the vehicle to fill the claim forms and to submit to the insurer and the same was duly filled and sent on 6.2.1989. The communication received on 31.1.89 from the insurer and the duly filled form copy had been enclosed with the written objection, the owner of the vehicle further asserted that he also sent covering letter on 6.2.89 which was served on the insurer and postal acknowledgement due was served. As such the owner of the vehicle asserted in his written statement that the vehicle in question, namely, the oil tanker was fully covered by insurance risk as per law and prayed for the dismissal of the claim on the above mentioned grounds against the driver and owner of the involved tanker.
6. The insurance company in all these cases filed the written statement, denying the claim of the claimants, it adopted the pleas taken by the owner and driver of the involved oil tanker with reference to the occurrence, its nature and the claim of compensation. The insurance company has further averred that the oil tanker in question bearing No. CNX 6543 has been insured with the insurance company for the period from 1.1.1988 to 31.12.1988 and thereafter from 12.1.89 to 11.1.1990. According to the insurance company from 1.1.1989 to 12.1.1989 till 5 p.m. there was no insurance of the oil tanker involved. The insurance company took the special plea that the owner had come to the office of the insurance company, paid the premium of Rs. 2,896 in cash and obtained fresh insurance of the vehicle No. CNX 6543. It asserted that the owner had given the proposal from 12.1.1989 for a fresh insurance of the said vehicle. The insurance company denied the allegations to the effect that owner had remitted the premium by pay order No. 062854 for Rs. 2,895.80 on 7.1.89 by post. It was further asserted by the insurance company in its written statement that insurance company, that is, the present appellant in the three appeals, did not receive the said pay order at any time and the same is with the owner's bank. It asserted that premium of Rs. 2,896 was paid on 12.1.1989 at 5 p.m. by the owner in cash. The insurance company asserted that it had not received any communication or letter dated 7.1.1989 and that there was no insurance of the vehicle in question during the period from 1.1.1989 to 12.1.1989 and so insurance company denied its liability to pay any compensation to the claimants. As according to the respondent insurance company in the claim petitions, which is appellant in the three appeals, that is, M.F.A. Nos. 2296, 2297 and 2298 of 1993, as there was no insurance of the vehicle in question according to it on 9.1.1989, that is, the date of accident, so the insurance company pleaded it is not liable to pay any compensation amount nor liable to indemnify the owner of the involved oil tanker and prayed for dismissal of the case against the insurance company.
7. On the basis of the pleadings of the parties, the Tribunal framed the following issues:
M.V.C. No. 94 of 1989(1) Whether the petitioners prove that on 9.1.1989 at about 5 p.m. the driver of the involved oil tanker bearing No. CNX 6543 drove the said oil tanker on the N.H. 48 leading from Padil to Kannoor on Mangalore-B.C. Road rashly or negligently and dashed against the deceased Padmanabha and thereafter it dashed against the motor cycle bearing No. CNO 1889 driven by the deceased M. Ramananda Shenoy on which one Dinakar was the pillion rider, thereby causing the accident as contended?
(2) Whether the respondent No. 2 proves that the above said accident was entirely due to the rash and negligent driving of the motor cycle bearing No. CNO 1889 by the deceased Ramananda Shenoy only, as contended?
(3) Whether the petitioners prove that in the above said accident the deceased Padmanabha sustained grievous injuries to his person and succumbed to the same on the spot?
(4) Whether the involved oil tanker bearing No. CNX 6543 was covered by insurance on the date of the accident and, therefore, the respondent No. 2 is liable to indemnify the owner in the event of the award?
(5) Whether the petitioners are entitled to the compensation claimed?
(6) If so, to what amount and from whom?
(7) What award or order?M.V.C. No. 205 of 1989
(1) Whether the motor accident in question involving oil tanker No. CNX 6543 and motor cycle No. CNO 1889 was due to rash and negligent driving of the oil tanker or the motor cycle by the deceased Ramananda Shenoy or both?
(2) Whether the death of deceased M. Ramananda Shenoy was due to injuries sustained in the said accident?
(3) Are petitioners the legal representatives entitled to compensation? And if so, to what amount?
(4) Whether the vehicle No. CNX 6543 was covered by insurance on the date of accident and, therefore, respondent No. 2 is liable to indemnify the owner in the event of an award?
(5) What reliefs the parties are entitled to?M.V.C. No. 256 of 1989
(1) Whether the motor accident in question involving oil tanker No. CNX 6543 and the motor cycle No. CNO 1889 was due to rash and negligent driving of the oil tanker or the motor cycle by the deceased M. Ramananda Shenoy or both?
(2) Whether the petitioner sustained injuries resulting in permanent disability as a result of the said accident as pleaded?
(3) Is petitioner entitled to any compensation? And if so, to what amount?
(4) Whether the vehicle No. CNX 6543 was covered by insurance on the date of accident and, therefore, the respondent No. 2 is liable to indemnify the owner in the event of an award?
(5) What reliefs the parties are entitled to?
8. The evidence was led by the petitioners. The Tribunal on a consideration of evidence held that the accident mentioned above had taken place entirely due to rash and negligent driving of the oil tanker by DW 4, the driver of the tanker. It further found that the claimants in all the claim cases established that the accident causing death of Padmanabha and M. Ramananda Shenoy and injuries to the claimant in M.V.C. No. 256 of 1989 had taken place due to rash and negligent driving of the oil tanker by the driver of the oil tanker and the respondents failed to prove that there was any negligence on the part of the two deceased M. Ramananda Shenoy, the rider of the motor cycle bearing No. CNO 1889, or Padmanabha nor any contributory negligence of deceased M. Ramananda Shenoy has been established by the respondents and that the petitioners-claimants have proved and established that Padmanabha and M. Ramananda Shenoy have died on account of the injuries sustained by them in the vehicular accident in question, which had taken place on account solely of rash and negligent driving of the oil tanker by the driver of the oil tanker. It further held that T. Dinakar, the claimant in M.V.C. No. 256 of 1989 (appellant in M.F.A. No. 2013 of 1993) sustained injuries and particularly fracture of the radius on the right side and partial tear of the medial ligament of the right ankle and the fracture of the nasal bone and superficial corneal injury to the right eye, resulting in permanent disability on account of the accident in question. The Tribunal in M.V.C. No. 205 of 1989 awarded a sum of Rs. 2,08,000 as compensation on account of the death of M. Ramananda Shenoy in the accident. The Tribunal really held that the claimants were entitled to a sum of Rs. 2,28,000 but as they have been paid Rs. 20,000 as the insurance amount of the policy which became matured after the death of M. Ramananda Shenoy, so that amount of Rs. 20,000 was deducted from the sum of Rs. 2,28,000 and, therefore, the balance payable was held to be Rs. 2,08,000. The Tribunal assessed Rs. 2,16,000 for loss of dependency, Rs. 4,000 for loss of consortium; Rs. 2,000 for expenses for funeral ceremonies of the deceased and thus he was held to be entitled to Rs. 2,28,000 and after deduction of Rs. 20,000 as mentioned above, it was held that he will be entitled to claim now the balance amount of Rs. 2,08,000 from the respondents.
9. With reference to M.V.C. No. 94 of 1989 in which Padmanabha's legal heirs have made claim on account of death of Padmanabha in the accident, the Tribunal awarded Rs. 1,16,000 as compensation on account of the death of Padmanabha in the vehicular accident, which is as under:
For loss of dependency Rs. 1,08,000 For loss of expectation of life Rs. 6,000 For funeral expenses Rs. 2,000
10. With reference to M.V.C. No. 256 of 1989, the Tribunal awarded the compensation as under:
Towards general damages for pain and suffering incurred by the petitioner due to the injuries sustained by him in the accident Rs. 10,500 Towards medical expenses Rs. 10,000 Towards loss of salary Rs. 2,713 For food, tea, refresh-
ments, etc., for himself and his attendant Rs. 1,100 For permanent disability Rs. 6,000
In total Rs. 30,313. The Tribunal awarded interest on the amount of compensation as mentioned earlier at the rate of 6 per cent per annum from the date of the application till the date of payment. The Tribunal held that in addition to the owner of the vehicle as there has been a valid coverage of insurance at the time of accident in this case and so insurance company was and has been liable for payment of damages in each of the three cases and gave the award.
11. That having felt aggrieved, the claimant in M.V.C. No. 256 of 1989 has filed M.F.A. No. 2013 of 1993, which is being made the leading case, while the insurance company in all these three cases has filed the appeals challenging the finding of the Tribunal regarding its liability and seeking interpretation of Section 64-VB of the Insurance Act, along with the provisions of Motor Vehicles Act.
12. Mr. S.S. Sripathy, counsel for the appellant in M.F.A. No. 2013 of 1993 submitted that the findings on question of accident being caused on account of negligence of the driver of the oil tanker and the finding that the injuries have been caused to the present injured appellant have been of grievous nature, that is, fracture resulting in permanent disablement and disfigurement, have become final, have not been challenged by any of the parties. Learned counsel for the appellant Mr. Sripathy contended that the compensation which has been awarded is unsatisfactory. He submitted that the compensation of Rs. 10,500 for the injuries, pain and suffering is too meagre and unsatisfactory. He submitted that the petitioner-appellant had suffered the permanent disability caused by the fracture and disfigurement of fracture of the bone and the abrasions on the eyebrow, which the petitioner-claimant has to carry on for whole life, and a sum of at least Rs. 30,000 should have been awarded as compensation or more than that amount should have been awarded as compensation. The learned counsel contended that the compensation to the tune of Rs. 6,000 which has been awarded for permanent disability is also too meagre. Learned counsel contended that at least a sum of Rs. 25,000 should have been awarded for the disability caused. Learned counsel further contended that in view of the above, the compensation under the two heads should be enhanced.
13. In the other set of appeals, that is, M.F.A. Nos. 2296, 2297 and 2298 of 1993, on behalf of the insurance company, it has been contended that the Tribunal has committed an error of law in fastening the liability for payment of compensation on the insurance company. Learned counsel contended that on the date of the accident, the vehicle, that is, the oil tanker was not under the cover of an insurance policy. Earlier policy had expired on 31.12.1988, thereafter the policy was not got renewed nor taken for the period from 1.1.1989 to 12.1.1989 till 5 p.m. Learned counsel for the insurance company, appellant, contended that the accident did take place on 9.1.1989 and on that date the vehicle was not covered by third party insurance and so the insurance company was not liable to pay any amount towards compensation in all these three cases and any decree that could be passed in favour of the claimant could be passed only against the owner of the vehicle and the driver, but not against the insurance company. Learned counsel further contended that the insurance policy is a contract and policy per se reveals that it was taken on 12.1.89. He submitted that the premium was deposited on 12.1.1989 in cash. Learned counsel invited my attention to Exh. D-18, which is the insurance policy and contended that the vehicle was covered under insurance policy from 12.1.1989 to 11.1.1990, i.e., for one year. He further contended that the premium was paid on 12.1.1989 at 5 p.m., and the risk under policy cannot be taken for any period earlier than the date of payment of the premium for the policy and in this connection he made reference to the provisions of Section 64-VB of the Insurance Act. Mr. Kambeyanda submitted that it confers power and discretion on the insurance company to assume the liability from any date subsequent to payment of the money but not earlier. Learned counsel further contended that the insurance company did not receive any such thing as the pay order alleged to have been issued on 7.1.1989 or alleged to have been sent by post to the insurance company and, therefore, the Tribunal committed error of law in taking the view that there was a tender of premium amount on 7.1.1989 when pay order is alleged to have been issued and posted to the insurance company. He further contended that the insurance company neither did receive the pay order on 7.1.1989, nor did it tender for its encashment and there has been no realisation or encashment of the amount under the pay order. The learned counsel contended that there was no valid tender nor can policy be taken to have been in existence on 9.1.1989 or the risk under the policy cannot be taken to be undertaken from 7.1.1989. The learned counsel contended that the burden did lay on the claimant or on the owner of the vehicle to have proved that the proposal for policy was tendered to the appellant insurance company and that money was paid on any date earlier to 9.1.1989, the date of accident. Learned counsel further contended that the claimant as well as the owner of the vehicle failed to establish that the pay order was delivered and paid or tendered to the insurance company and really it is with the bank, from where the claimant had got it issued and then alleged to have posted. It is for the owner of the vehicle, that is, respondent No. 1 to have explained and to have proved the delivery of pay order on or before 9.1.1989, the date of accident. Thus the claimant as well as the owner of the vehicle have failed to discharge and really something smells as if there was fraud. Learned counsel on this basis contended that the Tribunal acted illegally in fastening the liability on the insurance company at least in the three appeals for payment of the compensation money to the heirs of the deceased in the two cases and to the injured in the third case, that is, M.V.C. No. 256 of 1989.
14. The contention of the appellant in M.F.A. No. 2013 of 1993 has been hotly contested by respondents' counsel in that appeal, namely, Mr. Kambeyanda for the insurance company and Mr. A.S. Vishwanath, counsel for the respondent owner of the oil tanker and in the three appeals filed by the insurance company, the contentions made by Mr. Kambeyanda for appellant therein have been contested by the counsel for the owner of the vehicle, namely, Mr. A.S. Vishwanath and Mr. S.S. Sripathy, learned counsel for the claimant. Learned counsel submitted that the Tribunal was justified in holding that the insurance company had been liable.
15. Mr. A.S. Vishwanath, counsel for the respondent submitted that there is no doubt that under Section 64-VB of the Insurance Act, it has been provided that no liability shall be taken by the insurer for any period earlier than the date of payment of the premium. He further contended this is a negative mandatory direction. Mr. A.S. Vishwanath further submitted that a reading of Section 64-VB(2) read with Explanation thereto reveals that the mandate of law is that insurer has to undertake the risk from the date of payment of premium in cash or the delivery of cheque and he further submitted that read with Explanation, if the premium is sent and booked by money order or by the cheque, etc., sent by post, the liability and risk is to be borne and has to be borne from the date of booking of money order or posting of the cheque, etc., with correct address, and premium has to be taken to have been paid or delivered on the date of booking or posting. Learned counsel for the respondent conceded in the three appeals that the Explanation 'may' at both the places have been used not as conferring a discretion, instead it only provides a power and duty to assume the liability and fixes a date from which it has to be assumed and, therefore, no discretion has been left with the insurer in the matter of assuming of the liability instead it has to be assumed in case the payment has been made in cash by delivery of cash in hand or delivering of cheque in hand from the date of delivery or where money had been posted or booked by money order with correct address of the payee or by cheque, etc., sent by post that is posted from the date of its posting. He submitted that, therefore, cases where it has been held that where a power has been given and certain terms have been prescribed, then that power is not discretionary, but it becomes mandatory and he submitted as such when in the present case pay order had been sent by post under certificate of posting on 7.1.1989, for a period of one year and not from 12.1.1989 and as such the insurance company should be held liable to pay the compensation in all these cases. Learned counsel submitted that the owner of the vehicle respondent did not pay by cash, instead he had sent it by pay order under certificate of posting. With reference to Appeal No. 2013 of 1993, he submitted that the compensation awarded may be said to be satisfactory.
16. I have applied my mind to the contentions made by the learned counsel for the parties. I first propose to deal with Appeal No. 2013 of 1993. The claimant in M.V.C. No. 256 of 1989 giving rise to this appeal has suffered fracture injuries to his person. The appellant has sustained fracture of the nasal bone and superficial corneal injury to the right eye. He has suffered fracture of the radius and tear of the medial ligament of the right ankle. It has come in evidence that there was restriction of pronation and supination movements and the appellant Dinakar had to be operated on 7.4.1989 and reconstructive surgery was also done. The doctor had also noted that the restriction of movement has been a permanent disability. With reference to the fracture injury and pain and suffering, the Tribunal has awarded Rs. 10,500. The fracture injuries have been there. The petitioner has also suffered injury of his nasal bone, apart from fracture of radius and partial tear of the medial ligament of the right ankle and he had also to undergo surgery. Nasal bone injury and superficial corneal injury on the right eye and resultant defacing to certain extent require also to be taken into consideration, including the permanent disability of restriction of movement. In my opinion in such a case, the global compensation for the fracture of the nasal bone and superficial corneal injury to the right eye and the restriction of movement resulting in permanent disability, all taken together, an award of Rs. 10,500 appears to be inadequate. In my opinion, the claimant should have been awarded the compensation under this head to the tune of Rs. 36,000 including for permanent disability. He should have been awarded and he is declared to be entitled to a sum of Rs. 36,000 as global compensation under this head. So the compensation awarded by the Tribunal, which under item Nos. 1 and 5 under the Tribunal's award, comes to Rs. 16,500 is modified and is jointly enhanced to a global compensation of Rs. 36,000. The award is thus modified as under:
(a) Towards general compensa-
tion for the injuries, pain and suffering therefrom, as well as for permanent disability caused to the petitioner-appellant Rs. 36,000
(b) Compensation towards medical expenses, loss of salary, food, tea, refreshments, etc., under item Nos. 2, 3, 4 as awarded by the Tribunal is maintained and it is as under
(i) Medical expenses Rs. 10,000
(ii) Loss of salary Rs. 2,713
(iii) For food, tea, refreshments, etc., for himself and the attendant Rs. 1,100
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Total: Rs. 49,813
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In round figure it is held that the claimant is entitled in total to the compensation to the tune of Rs. 50,000 for the injuries sustained as well as for pain and suffering, permanent disability, medical expenses, loss of salary, food, nourishment, etc. The Tribunal has awarded interest at the rate of 6 per cent per annum. In my opinion, the rate of interest is too low and it is being enhanced to 9 per cent per annum. The liability to pay the amount no doubt will be of respondent Nos. 1 and 2 and so far as insurance company is concerned, is yet to be decided and it is to be adjudicated hereinafter.
17. In all the three appeals-M.F.A. Nos. 2296, 2297 and 2298 of 1993, as mentioned earlier, the question has been raised with reference to the liability of insurance company to pay compensation and insurance company has disputed its liability and finding of the Tribunal in this regard.
18. That the bare facts in this connection may be taken note of is that the accident in question had taken place on 9.1.89 at 5 p.m. It is also an undisputed fact that earlier insurance had come to an end on 31.12.1988. Till 31.12.1988 it is beyond doubt that the vehicle in question has been covered under the policy issued by the present appellant/insurance company in all the 3 appeals. The case of the insurance company is that with effect from 1.1.1989 to 12.1.89 there has been no policy taken and the vehicle was not covered by insurance policy. According to the case of the respondents, as per Exh. D-13 on record the policy covered the liability with reference to the vehicle in dispute from 12.1.89 to 11.1.1990. The case of the insurance company/appellant is that the said policy covered the liability for the period from 12.1.1989 to 11.1.1990 and during the earlier period between 1.1.1989 and 12.1.1989 till 12 noon there was no policy, as the premium has not been paid. The case of the appellant/insurance company has been to the effect that the owner of the vehicle respondent No. 1 in the claim case came to the office of respondent and paid the premium of Rs. 2,896 and obtained fresh insurance of the vehicle No. CNX 6543. He had given the proposal form on 12.1.89 for fresh insurance of the vehicle, while the case of the respondent/owner has been that he had remitted the premium by way of pay order No. 062854 for Rs. 2,895.80 on 7.1.1989 by post under certificate of posting. The insurance company in its case has denied the receipt of the pay order and emphasised that on 12.1.1989 premium was paid in cash and attributed its case that insurance was from only 12.1.1989 and so the insurance company/appellant was not liable to pay as on the date of accident, namely, 9.1.1989, there was no insurance of the vehicle. The case of respondent No. 1 in the three appeals has been that under the hire-purchase agreement with the Karnataka Bank, Pachanady Branch, Mangalore the vehicle, that is, the oil tanker was purchased in March, 1984 and since the hire-purchase agreement was discharged in January, 1989 and the Karnataka Bank did not remit the amount for renewal of the policy in 1989, respondent No. 1 in the three appeals, that is, the owner of the oil tanker remitted the insurance policy amount by pay order No. 062854 to the insurance company's Surathkal Branch on 7.1.1989. The case of the present respondent owner of the vehicle is that he had obtained the pay order on 7.1.1989 from the Karnataka Bank, Pachanady Branch, Mangalore for Rs. 2,895.80 and remitted it to the insurance company, Surathkal Branch, along with the covering letter under certificate of posting, which was accepted without demur, by the insurance company and it has not been returned to the sender. While the insurance company denied the receipt of that letter sent under certificate of posting. So two questions do arise, one is of fact whether the appellant insurance company had received postal communication whereby the pay order had been sent to the insurance company/appellant by the respondent/owner of the oil tanker and if it has been received what is its effect? The other question is, whether can it be taken that the premium was paid and insurance also stood revived from the date earlier to 9.1.1989, that at least from the date on which it was sent or posted to the insurance company?
19. The respondents' counsel laid great emphasis that it should be deemed to have been served and delivered once it had been posted and not returned to the sender, irrespective of whether it had been encashed or not by the addressee, in view of Section 64-VB of the Insurance Act read with its Explanation, while appellant's counsel emphasised that Section 64-VB of the Insurance Act may not apply to the present case as the pay order has never been delivered to and the presumption of law of its service that it has been delivered to the addressee stands rebutted by the evidence on record. The learned counsel for the appellant emphasised that the policy was issued on 12.1.89 only on payment of premium in cash to the tune of Rs. 2,896 and that was a fresh policy from 12.1.1989 to 11.1.1990. The pay order is Exh. D-1 on record. It bears No. 145/88-89. Pay order No. 062854, issued by the Karnataka Bank Ltd., Pachanady Branch, Mangalore, pay to United India Insurance Co. Ltd. Rupees two thousand eight hundred ninety-five and paise eighty only, on account of insurance premium for tanker No. CNX 6543 of Alice. Exh. D-11 is the certificate of posting. Under the head 'exact address on the article' it is mentioned that the Manager, United India Insurance Co. Ltd., Branch Surathkal (D.K.), refer one cover only. Exh. D-12 is the carbon copy of the letter dated 7.1.1989, appears to have been issued or written by respondent No. 1 the owner of the vehicle to the Manager, United India Insurance Co. Ltd., Surathkal, Mangalore. The subject-matter is renewal of insurance policy No. 70804/26/1690B, expiring on 31.12.1988, tanker registration No. CNX 6543. It is written therein "I am enclosing herewith a pay order No. 062854/145/88-89, dated 7.1.1989, for Rs. 2895.80." In this letter a request has been made to arrange for issuance of above policy for a further period of one year from 1.1.1989. According to respondent No. 1 this letter had been posted on the correct address along with the premium. It had not been returned to the sender. It has been nobody's case nor has been argued that the address mentioned in Exh. D-11 is not correct.
20. Under Section 27 of the General Clauses Act, meaning of service by post has been defined as under:
(27) Meaning of service by post.- Where any Central Act or regulation made after the commencement of this Act authorized or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
21. Learned counsel for the respondent Mr. Vishwanath placed reliance on this section, for the purpose of contending that service should be deemed to have been effected of the pay order, which had been sent by post to the insurance company, along with the letter under certificate of posting that it was delivered to the addressee, that is, the insurance company in the ordinary course, that is, within a day or two from the date of its posting. He also made reference to Section 114(f) of the Indian Evidence Act and contended that as no circumstance has been shown to believe that the postal order sent by post would not have been served and delivered to the addressee insurance company, it should be presumed that the letter along with the pay order posted by certificate of posting on 7.1.1989 reached its destination and the addressee and in this connection he made reference to certain decisions of the Supreme Court as well as of various High Courts.
22. Learned counsel for the appellant contended that the presumption should not be raised as now it is an admitted fact that the pay order has not been encashed and that it is with the bank, from which it was purchased. While respondents' counsel pointed out that the bank from which this pay order has been taken, and was issued to the insurance company, record shows that it had been sent by the bank in which the insurance company had got account and that the branch of the bank in which the insurance company has kept its account sent that draft to the Karnataka Bank, Branch Pachanady in Mangalore. Learned counsel for the respondent contended that it was for the appellant to have explained the circumstances in which it could be taken that it has not been delivered to the appellant and sent by the appellant to the bank in which insurance company had its account, namely, the Branch of the Karnataka Bank at Surathkal and Surathkal Branch sent it to Pachanady Branch. That the pay order along with the letter had been sent and posted to the insurance company, giving the correct address of the insurance company on the envelope in which the pay order along with the letter had been sent. There is no dispute between the parties that on the letter sent Under certificate of posting, the correct address of insurance company had been mentioned, as appears from perusal of Exh. D-1 1, the receipt of certificate of posting. The address mentioned therein and the addressee is the same as is mentioned in Exh. D-1 1. In Exh. D-11, the address of the present appellant has been mentioned as Manager, United India Insurance Co. Ltd., Branch Surathkal (D.K.). This very address I find is mentioned in the memo of appeal, in M.F.A. No. 2013 of 1993 and there is no dispute between the parties and it is not the appellant insurance company's case that the address given has not been correct nor is any assertion to that effect. So the presumption under Section 114(f) of the Evidence Act may be raised and may be made applicable unless to the contrary is established, because presumption under Section 114(f) is a rebuttable presumption and it may be a question whether the presumption has been rebutted by the appellant. Section 27 of the General Clauses Act as per language thereof itself, provides presumption of service of letter, etc., posted, if correctly addressed to the addressee that it had reached the addressee within reasonable time of posting of the letter and specially sent by registered post, but we may apply it in spirit read with Section 114(f) of the Evidence Act. That presumption under Section 27 is also rebuttable as the use of expression 'unless contrary is proved', used in Section 27 of the General Clauses Act. [See In re: Belgia AIR 1918 PC 338; Santosh Kumar Gupta v. Chinmoyee Sen ; Achamma Thomas v. E.R. Fairman AIR 1970 Mysore 77; Kirloskar Bros. Ltd. v. Engineering Machinery Mart ; Bans Rai Singh v. Krishna Chandra ; and Jitendra Nath Das v. Bijoy Lal Das .
23. In the present case, along with Exa. D-1 1, that is, the receipt of posting of the letter under certificate of posting, there is the statement of DW 2. In the course of examination-in-chief, Alice Tauro, DW 2 states: "I personally went to Karnataka Bank branch at Pachanady and made enquiry with regard to the insurance policy of the involved vehicle for the year 1989. Then I came to know that the said bank had not made payment of the insurance premium for my vehicle. On 7.1.89,1 obtained a pay order from the Karnataka Bank branch at Pachanady for Rs. 2,895.80 and sent the same to the respondent No. 2 under certificate of posting, through the post office at Attavar in Mangalore with a covering letter. It is Exh. D-11. It is the same certificate of posting under which I sent the pay order to respondent No. 2. This statement of the owner of the vehicle, namely, respondent No. 1 in the appeal clearly reveals that the letter along with pay order had been sent and despatched by post under certificate of posting on 7.1.89, and the letter that had been sent, its true copy had been filed by respondent No. 1 as Exh. D-12. That as in spite of summons being issued to the present appellant, that is, the insurance company who was respondent No. 2 before the Tribunal and as neither the bank branch nor the present appellant did produce the covering letter, though the owner of the vehicle has stated that she has produced the carbon copy of that letter dated 7.1.1989, which was sent along with Exh. D-1 the pay order, and it was marked as Exh. D-12, nor the letter was sent back by post office to the sender in the normal course of things and unless contrary is shown or established, the presumption can and is to be raised under Section 114(f) of the Evidence Act that the letter sent under certificate of posting along with the pay order and the covering letter had been delivered to the addressee, i.e., to United India Insurance Co. Ltd., that is, appellant.
24. Now let us examine whether this presumption which can be raised under law, namely, under Section 114(f) of the Evidence Act, as well as applying the principle under Section 27 of the General Clauses Act has been rebutted or anything to the contrary has been proved, because unless the contrary is shown or proved, the presumption may be raised that the letter was delivered to the addressee, that is, the insurance company. Ramanath, DW 5, is the Manager of United India Insurance Co. Ltd., Branch Surathkal, during the years 1982-1990. The learned counsel for the appellant made reference to the statement of that witness and it was asserted that the vehicle was brought under insurance coverage on 12.1.1989 by the respondent No. 1 and the same was covered by insurance from 12.1.1989 to 11.1.1990 as per Exh. D-13. DW 5 asserted that there was no coverage to the involved tanker from 1.1.1989 to 12.1.1989 till 5 p.m. The statement of this witness firstly proves that United India Insurance Co. Ltd. office is at Surathkal, as mentioned in Exh. D-11. My attention has been invited to the following statement of DW 5 in this connection, which is contained in para 3 of the deposition of DW 5, Ramanath, which reads as under:
Our office has not at all received any letter or any correspondence from the respondent No. 1 from 7.1.1989 to 11.1.1989. There are no entries in this behalf in Exh. D-25 from 7.1.1989 to 11.1.1989. I see Exh. D-1. Our office has not received the pay order at Exh. D-1 in between 7.1.1989 to 11.1.1989. No letter is received from the respondent No. 1 with regard to Exh. D-1 from 1.1.1989 to 12.1.1989. I see Exh. D-12. The original of Exh. D-12 is not at all received in the respondent No. 2's office at any time.
The same statement is repeated in para 5, which reads:
Even till today, we have not received the pay order marked at Exh. D-1.
In para 8, during the course of cross-examination, this witness DW 5 states:
If pay order had been sent on 7.1.1989, if I had come to know that accident had taken place on 9.1.1989, I would not have taken the pay order.
A perusal of the statement of DW 1 discloses that there has been no dispute so far as the address of the appellant as mentioned in certificate of posting Exh. D-1 was, in the envelope sent, has been concerned. From this deposition of DW 1 it comes out that the address of insurance company has been correct, as was mentioned in the letter posted, which was sent under certificate of posting, as it is exhibited by Exh. D-11 and Exh. D-12. When the letter had been sent under certificate of posting and no reason has been assigned as to why it could not be delivered to the appellant insurance company, the ordinary presumption of law, that by bare denial of receipt does not stand rebutted, nor it stands rebutted by non-existence of entry in Exh. D-25.
25. Niranjan Kumar, DW 1, who is the Manager of Pachanady Branch of Karnataka Bank has deposed: "I signed the said pay order No. 062854/145/88-89 for Rs. 2,895.80 dated 7.1.1989, towards the premium of the tanker No. CNX 6543. The insurance company has got a branch at Surathkal. The pay order No. 062854 bears the signature of the Manager of the Branch at that time. That pay order was received by our branch at Surathkal. The Karnataka Bank, Surathkal Branch in turn returned it to our branch. I have to see whether the cover addressed to our branch from Surathkal Branch is enclosing pay order No. 062854, dated 7.1.1989 of Karnataka Bank, Pachanady Branch. He has further stated pay order is still outstanding in the books of the bank and it is not collected or realised by the bank. This statement of DW 1, if it is perused in the light of Exh. D-19 and Exh. D-20, it will appear that the pay order stands uncollected, but it had been sent under certain postal cover captioned 'Pay order, under certificate of posting'. I may quote Exh. D-20. It is dated 10.2.89. It is addressed by Manager, Karnataka Bank Ltd., Surathkal Branch, to the Manager, Pachanady Branch, Mangalore. It reads:
Dear Sir, Reg: Your P.O. No. 062854/145/88-89, dated 7.1.1989, Eg. U.I.I. Co. Ltd., for Rs. 2,895.80.
This day we have received one postal cover containing therein the captioned pay order issued by your branch, under certificate of posting. Neither the sender's address nor any covering letter was there in that cover. Hence, the pay order is transmitted to you for doing the needful, at your end.
What has to be taken note of is that this pay order had not been encashed till 10.2.1989. This appears to have been sent under certain postal cover sometime in February, 1989 and reached on 10.2.1989 to Iddya-Surathkal Branch of Karnataka Bank. The person who sent it to Iddya-Surathkal Branch of the bank is not clear as it did not contain any covering letter from sender or sender's address in that cover under which the pay order was sent to its branch of the bank. It also indicates that this pay order in question was for United India Insurance Co. Ltd. and as the pay order has been delivered under a cover to the Surathkal Branch and without any covering letter, it was sent or delivered to the Manager of the Karnataka Bank Ltd., Pachanady Branch and thereafter the Manager of Pachanady Branch intimates Mrs. Alice, vide Exh. D-19, that the pay order that was purchased for Rs. 2,895.80 in favour of United India Insurance Co. Ltd. along with the covering letter of Iddya-Surathkal Branch of the bank was being sent to respondent No. 1, namely Alice Taura.
26. The posting of the pay order along with the letter and covering letter under certificate of posting, in the name of the United India Insurance Co. Ltd., has no doubt been established by the statement of Alice Taura, DW 2 and Exh. D-11 the certificate of posting and the address mentioned therein does not appear to be incorrect. When the letter containing the pay order and the letter dated 7.1.1989, Exh. D-1, stand established to have been posted under certificate of posting as per entry Exh. D-11, in the normal course of things it has to be presumed that the letter posted on 7.1.89, along with the pay order reached the addressee in the ordinary course. No circumstance has been explained as to why it could not and did not reach insurance company and as mentioned earlier ordinary presumption of law will apply that the letter sent under Exh. D-1 reached its destination. In the normal course of things a person in case of urgency will go to take the delivery of the policy and if he believes that vehicle is covered by policy, for which he had already paid the premium he would go to the insurance company and take the policy. In the present case, it has come in evidence that as per statement of DW 2, respondent No. 1 in the appeal would have gone to fetch the policy for which she has sent the pay order. DW 2 states that the driver and the vehicle were in the police station. The police asked her to produce the insurance card pertaining to the vehicle. She stated:
I informed the police that I had obtained the pay order regarding the payment of the insurance premium issued by Karnataka Bank. Thereafter I went to the office of the respondent No. 2 at Surathkal on 10.1.1989, 11.1.1989 and 12.1.1989 for taking or say asking the respondent No. 2 to furnish the insurance policy of my vehicle. Ultimately on 12.1.1989 the respondent No. 2 issued the insurance policy regarding the vehicle.
Nothing unnatural on the part of DW 2 is pointed. Subsequently, on 26.1.1989, she had also addressed a letter to respondent No. 2 insurance company as to why the insurance company had issued the policy from 12.1.1989, even though the pay order was sent to the insurance company on 7.1.1989 itself. This document is Exh. D-14. The statement of DW 2 coupled with Exh. D-14, clearly shows that respondent No. 1 did act as a person of common sense would do. In the letter dated 26.1.1989, Exh. D-14, it had been very clearly stated:
Surprisingly in the policy issued for the year 1989-90, for the period from 1.1.1989 to 31.12.1989 in the policy No. 70804/091/31/24/01093/89, the period is noted as from 12.1.1989 to 11.1.1990 obviously to exonerate the legal liability for the period 1.1.1989 to 11.1.1989. This is not only fraudulent but also illegal and dishonesty played on an innocent woman. Having accepted the pay order dated 7.1.1989 and the covering letter dated 7.1.1989, you should not mislead me by reducing the period.
It is also mentioned in para 7, that because of your dishonest act I could not get the vehicle released before 17.1.1989. You will be responsible for the loss caused to me. Your liability in respect of the accident duly intimated on 9.1.1989 is legally and morally justifiable.
27. In this letter respondent No. 1 appears to have also mentioned that she is having copies of the pay order and the original certificate of posting, duly issued by the post office and the covering letter mentioned in the letter earlier. This Exh. D-14 appears to have been served as per Exhs. D-15 and D-17 on record.
28. It is an admitted fact as per the statement of DW 5, the Manager of the insurance company, that Exh. D-14 was received by the Manager of the insurance company. Exh. D-14 is nothing else but the letter of the present respondent No. 1, that is, the owner of the tanker, which I have quoted above and Exh. D-18 is the signature of the person on whom it was served. It appears to have been served on the Surathkal Branch of the insurance company on 13.1.1989. When interrogated in cross-examination, DW 5, the Manager of the insurance company states I have received the letter at Exh. D-14, along with Exh. D-17.1 have not sent a reply to Exh. D-14. No reason has been assigned why it was not replied and why it was not stated that no pay order has ever been received. There has been a need for the respondent insurance company to have issued a reply when imputation was made in that letter that a fraud has been played by the insurance company on her, as she had paid the premium by pay order dated 7.1.1989 and pay order had been received by the company and the policy should have been renewed for the year from 1.1.1989 to 31.12.1989, but the company has played fraud and surreptitiously and fraudulently put 12.1.1989 in the policy. Non-denial of the allegation and imputation of fraud, etc., leads me to infer and presume that letter sent with Annexure D-1 1 along with pay order dated 7.1.1989 had been received by the insurance company and when it came to know about the accident or occurrence from respondent No. 1 itself, respondent No. 2 in the appeal abstained from getting the pay order encashed and after receipt of the notice sometime thereafter it so appears, the pay order was sent to the Surathkal Branch of the bank by the insurance company by certain post without mentioning the name and address of the sender and Surathkal Branch of the bank when found that such a pay order has been sent to it, even without any covering letter and without indication of the address of the sender it remitted it to its Pachanady Branch from which it was purchased, for United India Insurance Co. Ltd., itself and thus it reached Karnataka Bank, Pachanady Branch, without being got encashed. There could be no other purpose than to save the liability of occurrence, which had taken place on 9.1.89. It may be that because respondent No. 1 was in a pressure of circumstances, she was running to the insurance company time and again, the insurance company issued policy, mentioning 12.1.1989 as the date of commencement of the policy. It is the case of the insurance company that cash payment was made. No document had been produced in the form of any receipt book or receipt. It has come in the statement of DW 5 as under:
I have not issued the cash receipt regarding payment made by respondent No. 1 on 12.1.1989 at 5 p.m. The respondent No. 1 has talked to me. It is true that respondent No. 1 has told me that the vehicle has met with accident as such she required the insurance policy regarding the vehicle.
The theory of cash, that policy was issued on payment of cash on 12.1.1989 at 5 p.m., is not accepted. The natural conduct of a person would have been to issue a receipt, when the premium has not been paid early, if it was being paid in cash. DW 1 has stated that he has shown the pay order and the copy of the covering letter under which original pay order was sent to the bank. He admits that he had come to know about the occurrence on 12.1.1989, but pay order would have reached in the normal course, might be sometime on 9th, 10th or 11th of January, 1989. Even if for a moment it be taken that the claimant was required to pay the cash, the owner of the vehicle would have deposited the amount in cash, though the owner of the vehicle had denied it, the insurance company cannot take shelter thereon of simpliciter for its inaction to get the pay order encashed and particularly after it having come to know about the accident. The other circumstances appearing in the case have also been considered by the Tribunal and considered those circumstances, in my opinion along with, what I have observed above, it appears the Tribunal was justified in taking the view that the pay order sent to the insurance company by respondent No. 1 did reach and was delivered to the respondent insurance company, no doubt it was not encashed. Exh. D-21, which is stated to be the receipt of the insurance company regarding payment obtained on 12.1.1989, it is mentioned as issued on 13.1.1989, though it is the case of the appellant in the three appeals that the payment was made on 12.1.1989. It is not the case of the appellant that the pay order really had been received after the issuance of the policy and when this is not the case of the appellant, it has to be presumed that the pay order was received by it earlier than 12.1.1989, but having come to know of the accident, it took the benefit of the situation of the innocent person. It might have taken the money in cash if at all and kept the pay order without getting it encashed and then instead of renewing it from 1.1.1989 it issued it from 12.1.1989, to save its skin from the liability.
29. Now in these circumstances, the question arises, can insurance company be allowed to take the benefit of its own inaction and in the absence of its explanation why no reply was given to the notice Exh. D-14 and its contents. In this view of the matter, even if it has not got the pay order encashed and remitted that to the bank for being forwarded to the Pachanady Branch, issuing the pay order and not returning it to the real owner, that is, respondent No. 1, it has to be presumed that the insurance company received the premium not on 12.1.1989 but on 7.1.1989, the date on which the pay order was sent to the insurance company by post, under the certificate of posting. This view I am taking appears to be in consonance with Section 64-VB of the Insurance Act read with Explanation thereto, that liability to be assumed from the date when the cheque is posted. Section 64-VB reads as under:
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 by 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.
Sub-section (1) of Section 64-VB issues a negation that the insurer shall not assume the risk, 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. Sub-section (2) further directs the insurance company that risk may be presumed from the date the premium is paid and not early. The expression 'may' here indicates the date from which the risk is to be assumed, namely, it shall not be assumed earlier than the date when the premium is paid. It means it shall be assumed from the date when the premium has been paid in cash or by cheque and the explanation to Sub-section (2) shows where the premium is tendered by post or money order or by cheque or such instrument sent by post, it may be assumed on the date on which the money order is booked or cheque is posted, as the case may be. Here 'may be' is not discretionary power. Here 'may' appears to have been used as directory that with effect from the date of payment of cash risk has to be assumed and if the premium has been sent by post, money order or by cheque, then the date of booking the money order or posting of the cheque, etc., by post as the case may be, to be taken as the date of payment and risk has to be assumed from that date. The law does not leave it as the discretion of the authority to get it encashed on a particular day or some other date or not to encash it. The law provides that sooner the insurer or person getting insurance pays money by sending of cheque by post or sending the money by money order, the date of sending the money by money order by the person seeking the insurance or reviving the insurance policy is to be taken as the date of payment, irrespective of the fact when it is encashed and if the insurance company does not get it encashed for good long time, does so on its own risk, leaving aside the cases where the cheque is dishonoured by the bank for some fault of the person issuing the cheque.
30. So, in the present case, as the pay order was not got encashed and it is not anybody's case that the pay order was received later than 12.1.1989, it has to be presumed that the pay order was received by the insurance company, knowing fully well of the accident, it has not got it encashed and when notice, etc., were issued by the lady, then the insurance company got it despatched by the branch through which it might be having account, to the Pachanady Branch of the Karnataka Bank, which has issued the pay order, without getting it encashed and specially when this pay order has not been returned to the sender, namely, respondent No. 1.
31. In this view of the matter and taking the provisions of the Motor Vehicles Act, relating to emphasis on compulsory insurance, the beneficial provision, social welfare law and the provisions of Section 64-VB, in my opinion, it has to be taken that payment had been made on 7.1.1989, when pay order was posted and sent to the insurance company by the sender by post. The use of expression money order, postal order, cheque, etc., is illustrative and explanatory and apply to pay orders also sent by post and when this appears to be the position of law, in my opinion, the Tribunal has rightly for reasons mentioned, which I think are justified and correct, irrespective of the fact that the insurance company has mentioned the period of covering from 12.1.1989 to 11.1.1990, it has to be taken that risk was covered under policy for the year at least from 7.1.1989 and thereafter. The insurance company had no jurisdiction to issue the policy from any other date than what the law mandates and no person can be allowed to deviate from the operation of law, or to render law nugatory by his own acts like one referred to above of the appellant.
32. In view of these facts and circumstances, it appears to me just and proper to hold that the Tribunal has rightly held that the risk was covered by the insurance policy with effect from 7.1.1989 and on the date of occurrence the vehicle was covered by the insurance policy and it has rightly held that the insurance company is liable to pay compensation to the claimants in all the three cases as awarded by the Tribunal.
33. As such the appeals filed by the insurance company, namely, M.F.A. Nos. 2296, 2297 and 2298 of 1993 have got no merits and deserve to be dismissed. While the claimant's appeal for enhancement, namely, M.F.A. No. 2013 of 1993 is allowed and it is held that the claimant is entitled to the total amount of compensation to the tune of Rs. 50,000 with costs and interest at the rate of 9 per cent per annum.
34. Miscellaneous First Appeal Nos. 2296, 2297 and 2298 of 1993 are dismissed and Appeal No. 2013 of 1993 is allowed. Award is only modified to the extent as mentioned above. Let copy of this order be also placed in the record of connected Appeal Nos. 2296, 2297 and 2298 of 1993.