Karnataka High Court
The Divisional Manager, vs Dr. Sadanand S/O Madivalaiah Hiremath, on 26 June, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
MFA NOS.21737/2011 C/w
MFA 21738/2011, MFA 23612/2009 (MV)
MFA NOS.21737/2011
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, SUJATHA COMPLEX,
P.B.ROAD, HUBLI
NOW R/BY ITS ADMIN.OFFICER.
... APPELLANT
(BY SRI. S K KAYAKAMATH, ADV.)
AND
1. SRI BASAVARAJ S/O HALAPPA ANGADI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O DODDAGUBBI VILLAGE,
HIREKERUR TQ,
DIST: HAVERI.
2. SMT LAXMIDEVI BASAPPA TALAWAR W/O
BASAPPA TALAWAR,
AGE: MAJOR, OCC: VEHICLE OWNER,
R/O BASANAGAPUR, POST: KUDUPALI,
-2-
TQ: HIREKERUR, DIST: HAVERI,
(OWNER OF VEHICLE NO.KA27/2539).
3. THE K.G.I.D.
AMBEDKAR ROAD,
BANGALORE.
... RESPONDENTS
(BY SRI.K.M.SHIRALLI, ADV. FOR R1-ABSENT
SRI. G.S.HULMANI ADV. FOR R2
R3 NOTICE DISPENSED WITH)
MFA FILED U/S.173(1) OF THE M.V.ACT 1988,
AGAINST THE JUDGEMENT AND AWARD
DATED:10.12.2010, PASSED IN MVC NO.373/2004 ON
THE FILE OF THE ADDL. SENIOR CIVIL JUDGE &
ADDL. MACT., RANEBENNUR, AWARDING THE
COMPENSATION OF RS.1,85,605/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION
TILL ITS REALIZATION.
MFA 21738/2011
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, SUJATHA COMPLEX,
P.B.ROAD, HUBLI
NOW R/BY ITS ADMIN.OFFICER.
... APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADV.)
AND
1. DR. SADANAND S/O MADIVALAIAH HIREMATH,
AGE: 39 YEARS, OCC: ASST.PROFESSOR,
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AGRI SCIENCE CENTRE, HANUMANAHATTI,
R/O HANUMANAHATTI,
THEREAFTER: RANBENNUR.
2. SMT LAXMIDEVI BASAPPA TALAWAR W/O
BASAPPA TALAWAR,
AGE: MAJOR, OCC: VEHICLE OWNER,
R/O BASANAGAPUR, POST: KUDUPALI,
TQ: HIREKERUR, DIST: HAVERI,
(OWNER OF VEHICLE NO.KA27/2539).
3. THE K.G.I.D.
AMBEDKAR ROAD,
BANGALORE.
... RESPONDENTS
(BY SRI. AVINASH BANAKAR, ADV. FOR R1
SRI. G.S.HULAMANI, ADV. FOR
SRI. M.H. PATIL ADV. FOR R2
NOTICE TO R3 DISPENSED WITH)
MFA FILED U/SEC.173(1) OF M.V. ACT 1988,
AGAINST THE JUDGMENT AND AWARD
DATED:10.12.2010, PASSED IN M.V.C. NO.31/2006
ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE &
ADDL. MACT., RANEBENNUR, AWARDING THE
COMPENSATION OF RS.2,37,424/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION
TILL ITS REALIZATION.
MFA NO.23612/2009
BETWEEN
1. LAXMIDEVI BASAPPA TALAWAR BASAPPA
TALAWAR
AGE 24 YEARS, OCC:BUSINESS
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R/O BADASANGAPUR
AT:PT.KUDUPALI
TQ:HIREKERUR, DIST HAVERI
2. REVANASIDDAPPA
S/O GANESHAPPA KANNAPPANAVAR,
AGE 28 YEARS OCC:DRIVER
R/O HALAGERI
TQ:RNEBENNUR
DIST:HAVERI.
... APPELLANTS
(BY SRI.M H PATIL, ADD.)
AND
1. BASAVARAJ S/O KURUVETEPPA GUTTAL
AGE 48 YEARS, OCC:DRIVER
R/O. HANUMANAMATTI
RQ:RANEBENNUR
DIST:HAVERI
2. THE MANAGER
NATIONAL INSURANCE CO.LTD
NEW COTTON MARKET
HUBLI
3. THE DIRECTOR
KARNATAKA GOVT INSURANCE DEPARTMENT
BEHICLES BRANCH
BANGALORE. ... RESPONDENT
(BY SRI. KAYAKMATH ADV. FOR R2
R1 AND R3-SERVED)
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MFA FILED U/S 173(1)OF THE MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED: 02-09-2009
PASSED IN MVC.NO.36/2006 ON THE FILE OF
PRL.CIVIL JUDGE (SR.DN.) & AMACT, HAVERI,
AWARDING THE COMPENSATION OF RS.20,000/-
ALONG WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
RESERVED FOR JUDGMENT ON : 15.06.2020.
JUDGMENT PRONOUNCED ON : 26.06.2020
THESE APPEALS HAVING BEEN HEARD
AND RESERVED FOR ORDERS, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT PASSED THE FOLLOWING:
JUDGMENT
I have heard learned Advocate Sri. S. Kayakamath for the insurer and learned Advocate Sri. G.S. Hulimani for the claimants.
2. Brief facts of the case are as follows:-
Sri B. Arun Kumar filed the first information with Ranebennur Rural police on 2/12/2003 stating that on the said date he, along with his colleagues Dr.Sadanand M.Hiremath and Sri. Shreeshail was proceeding in the -6- tempo Trax bearing registration No.KA-25/8291 from Hanumanatti towards Kuppelur. The driver Basavaraj Guttal was driving the vehicle. When they were proceeding on Ranebenur-Halgeri road, a tempo bearing registration No.K27-2539 driven by its driver in a rash and negligent manner and in a high speed, came from the opposite direction i.e. from Halgeri, and was proceedings towards Ranebennur, dashed to the left side of the trax. As a result of this impact, both the vehicles got damaged and the driver of the trax, Basvaraj Guttal and inmate Dr.Sadanand M.Hiremath have sustained injuries over the body. The driver of the tempo had also sustained simple injuries. The injured were shifted to the Government Hospital, Ranebennur for treatment. It was stated that the accident in question was only due to the rash and negligent driving of the tempo by its driver and he requested the police to register the case and to initiate legal action. -7-
3. The driver of the trax bearing registration No.KA- 25/8291 Sri Basavaraj Guttal filed the claim petition in MVC No.36/2006 before the Principal Civil Judge (Sr.Dn) and AMACT, Haveri, (hereinafter referred to as "the Tribunal, Haveri"), claiming compensation for the injuries sustained by him in the road traffic accident. The petition was came to be allowed in part, awarding compensation of Rs.20,000/- to the claimant and it was ordered that respondent Nos.2 and 3, i.e. the owner of the tempo bearing registration No.K27-2539 and owner of the trax No.KA-25/8291 are jointly and severally liable to pay the compensation. However claim against both the insurance companies are dismissed.
4. Sri. Basavaraj Angadi traveling in tempo bearing registration No.K27-2539 and Sri. Sadanand M.Hiremath traveling in trax bearing registration No.KA- 25/8291 have filed two separate claim petitions in MVC Nos.373/2004 and 31/2006 before the Addl. Senior -8- Civil Judge and AMACT, Renebennur, (hereinafter referred to as "the Tribunal, Ranebennur"), claiming compensation for the injuries sustained by them. The Tribunal at Ranebennur considered both the petitions and vide its common judgment dated 10/12/2010 held that the petitioner in MVC No.373/2004 is entitled for compensation of Rs.1,85,605/- and the petitioner in MVC No.31/2006 is entitled for compensation of Rs.2,37,424/- and also held that respondent No.1- owner of the tempo bearing registration No.KA27-2539 and respondent No.2 being the insurer of the said vehicle are jointly and severally liable to pay the compensation to the petitioners.
5. Aggrieved by the judgment and award passed in MVC No.36/2006 by the Tribunal at Haveri, respondent Nos.2 and 3 i.e. owners of vehicles bearing registration Nos.KA-27/2539 and No.25-25/8291 have preferred MFA No.23612/2019 on the following grounds:- -9-
The impugned judgment and award passed by the trial Court dismissing the petition against respondent Nos.1 and 4 before the Tribunal who are respondent Nos.2 and 3 herein, is illegal, perverse and the same is liable to be set aside.
6. The finding given by the Tribunal at Haveri that it is only the present appellants who are the owners of the vehicles involved in the accident, are liable to pay the compensation, is erroneous since the offending vehicle bearing registration No.KA-27/2539 was insured with the National Insurance Company i.e. respondent No.1 before the Tribunal and respondent No.2 herein, (herein after referred to as the 'insurer) the said company should have been liable to pay the compensation. The Tribunal has not taken into consideration the documents produced before it and has arrived at a wrong conclusion. Therefore, the appellant prays for setting aside the impugned order saddling the liability
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on the appellants alone and dismissing the petition against the Insurance Company, in the interest of justice and to hold that it is only the Insurer of the both the vehicles i.e. respondent Nos.2 and 3 are liable to pay the compensation to the claimants before the Tribunal.
7. Aggrieved by the common judgment and award passed in MVC No.373/2004 by the Tribunal at Ranebennur, respondent No.2 the insurer of the vehicle bearing registration No.KA 27-2539 has preferred MFA No.21737/2011 and similarly against the very same judgment and award passed in MVC No.31/2006 also the insurer has preferred MFA No.21738/2011.
8. The common grounds made out in both these appeals are as under:-
The impugned judgment and award passed by the Tribunal at Ranebennur is illegal, perverse and the same is liable to be set aside. It is contended that the accident in question had occurred at 1.00p.m. on
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2/12/2013 but the owner of the vehicle had approached the Insurance Company after the accident and paid premium at 15.34 hours on 2/12/2003 and obtained 'Act liability only' policy by suppressing the material fact of occurrence of the accident. The policy in question was obtained by misrepresentation. The premium receipt is produced before the Tribunal as Ex.R1 which clearly goes to show the fraud played by the owner of the offending vehicle. Based on the misrepresentation and fraud committed by the owner of the vehicle, the Insurance Company issued the policy which is as per Ex.R4 and the policy was in force from 00.00 hours on 3/12/2003 till mid-night on 2/12/2004. Therefore, it is very clear that the policy was not in force when the accident occurred. But the Tribunal has lost sight of this fact and proceeded to pass the impugned common judgment and award in both the claim petition which has resulted in miscarriage of justice. Therefore, the appellant in both the appeals pray for setting aside the
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common judgment and award, saddling the liability on the Insurance Company-appellant herein in the interest of justice.
9. The respondents in all the three appeals are notified. Learned Advocate for the appellant-insurer Sri.S.K.Kayakmath and learned Advocate for the owner of the vehicle bearing Registration No.KA 27-2539 Sri.G.S.Hulamani, Sri. Avinash Banakar, learned Advocate for claimant have addressed their arguments.
10. I have gone through the materials placed before the Court including the TCR. It is pertinent to note that the claimants in all these claim petitions before both the tribunals have not preferred any appeal challenging the amount of compensation awarded in their favour. Therefore, the short question that is involved in all these appeals is as to whether the appellant in MFA Nos.21737/2011 and 21738/2011 is liable to indemnify the owner of the vehicle bearing
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registration No.KA-27/2539 which had involved in the accident.
11. On going through the grounds made out in all the three appeals, the appellants have not challenged the quantum of compensation awarded by the Tribunal. However in MFA No.23612/2009, it is stated that awarding of compensation of Rs.20,000/- to the claimant only for the simple injures is highly excessive and exorbitant. But, while addressing the arguments, the learned Advocate representing the appellants had not addressed his arguments on the said ground urged in the memorandum of appeal.
12. On the other hand, both the learned Advocates have concentrated and addressed their arguments only with regard to the liability of the National Insurance Company, which is appellant in MFA No.21737/2011 and MFA 21738/2011 and respondent No.2 in MFA No.23612/2009.
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13. MVC No.36/2006 was filed before the Tribunal at Haveri by the claimant making the National Insurance Company as respondent No.1. It is stated that offending vehicle bearing registration No.KA 27- 2539 was insured with respondent No.1 and therefore, it is liable to pay the compensation. Respondent No.1 filed its objection contending that the vehicle in question was insured with it on the date of accident and the Insurance Policy was obtained after the accident by suppressing the material facts and therefore, Insurance Company is not liable to pay the compensation to the claimants.
14. The Tribunal at Haveri appreciated the said contentions of the insurance company and proceeded to dismiss the petition against the Insurance Company holding that it is only the owners who are liable to pay the compensation.
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15. In MVC Nos.373/2004 and 31/2006, the claimants have claimed the compensation initially from the respondents i.e. the United India Insurance Company Limited which was arrayed as respondent No.2-as the insurer of the vehicle bearing registration No.KA-27/2539. When the said Insurance Company filed objections contending that the vehicle in question was not insured with it at the relevant point of time and also stated that the vehicle was insured with the National Insurance Company at the time of accident, the name of the United India Insurance Company came to be deleted and the National Insurance Company is arrayed as respondent No.2.
16. The owner-respondent No.1 filed his objections contending that the vehicle in question was insured with the National Insurance Company and therefore, the said insurance company is liable to pay the compensation. Respondent No.2-National
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Insurance Company filed its objections contending that the policy in question was issued with effect from 00.00 hours on 3/12/2003 to midnight of 2/12/2004 and the accident had taken place at 1:00 p.m. on 2/12/2003. Therefore, the coverage of insurance was not in force at the time of accident. Hence, it is stated that the insurance company is not liable to pay the compensation. However, the Tribunal had not accepted the said contention of the insurance company and proceeded to pass the impugned common judgement and award saddling the liability on the insurance company to pay the compensation.
17. For better appreciation of the contentions of the parties, the date and time of the accident has to be taken into consideration. It is not in dispute that the accident is question had occurred at 1:00 p.m. on 2/12/2003.
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18. The short question that would arise for consideration is weather at 1:00 p.m. on 2/12/2003 the vehicle bearing registration No.KA-27/2539 was insured with the insurance company or not.
19. Ex.R1 is the copy of the receipt for having collected the insurance premium. As per this document, the premium was paid on 2/12/2003 at 15.34.28 hours i.e. at 3.34.28 p.m. Ex.R2 is the proposal form submitted by the owner of the vehicle Laxmidevi Basappa Talawar for insuring her vehicle bearing registration No.KA-27/2539. As per this document, the application was submitted with National Insurance Company at 3.15 p.m. and the premium was collected as per receipt No.1064 for Rs.3,851/-. Ex.R4- copy of the certificate of insurance policy issued by the National Insurance Company, in the name of owner Laxmidevi Basappa Talawar, in respect of the vehicle bearing registration No.KA27/2539 for the period from
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00.00 o'clock on 3/12/2003 to midnight on 2/12/2004. As per this document, the amount of premium collected is Rs.3,851/- on 2/12/2003. All these materials are never disputed by the owner of vehicle in question. However, the defence taken was that the vehicle in question was insured on 2/12/2003 at 10.00a.m. and thereafter, it met with an accident. Owner Smt. Laxmidevi Basappa Talawar examined herself as RW-1 before the Tribunal at Ranebennur and also at Haveri in support of her contention that the vehicle was insured at 10:00 a.m. on 2/12/2003 and the accident had occurred at 1:00 p.m. and therefore, the insurance company is liable to pay the compensation.
20. The learned advocate for the insurance company has relied on the following decisions in support of his contentions:-
21. Oriental Insurance Company. Ltd. Vs. Sunitha Rathi and others1 wherein the Supreme 1 (1998) 1 SCC 365
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Court considered the similar situation where the motor vehicle accident occurred at 2.20 p.m. on 10/12/1991 and the vehicle in question was insured with the Insurance Company on the same date at 2.55 p.m. and insurance policy and cover note were obtained. The Hon'ble Apex Court after considering the facts and circumstances of the case, specifically held in para 2 as follows:-
"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
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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 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
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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".
22. National Insurance Co.Ltd. Vs.Sobina Iakai (smt) and Others connected with National Insurance Co Ltd. with Kerolin P.Marak (Smt.) and others2. The Insurance Company had renewed the insurance policy on 20/7/1994 at 2.00p.m., whereas the accident had occurred on the same day at 9.15 a.m. In the policy, it was mentioned that the 'motor renewal endorsement' and the renewal for 12 months is also mentioned specifically as from 20/7/1994 at 2.00 p.m. to 19/7/1995. In the said circumstances, the Hon'ble Supreme Court held as under:-
2
(2007) 7 SCC 786
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"12. Admittedly, at the time when the accident had occurred at 9.15 a.m. on 20.7.1994, the respondent did not have the insurance cover. The insurance policy was obtained at 2.00 p.m. on 20.7.1994, which is clearly evident from the motor renewal endorsement set out in the earlier part of the judgment.
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 manifestly erroneous approach of the High Court has led to serious miscarriage of justice.
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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
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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
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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.
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19. In order to curb this widespread mischief of getting insurance policies after the accidents, it is absolutely imperative to clearly 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."
23. B.N.Jeevan Prakash Vs. Shabeer Ahamad Shariff and others3 wherein the Division Bench of this Court also held that when the time of commencement is mentioned in the policy, the question of commencement of policy from the mid-night of the previous day does not arise. It is also held that that policy will commence from the time of commencement mentioned in the policy and will cover the accident occurred thereafter.
24. Per contra, the learned Advocate for the owner relied on the following decisions in support of his contentions:-
3
2006 SCC Online Kar 431
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National Insurance Co. Ltd. and Others Vs. Bhadramma and Others4 wherein the Division Bench of this Court considered the renewal of the Insurance policy for the period from 12/3/1988 to 12/9/1989 by paying premium for one year on 26/8/1988. Considering the fact that the time with which the policy begins to run was not mentioned in the policy, it was held that the office of the insurer commences at 10.00 a.m., and therefore, it is not established that the premium was paid subsequent to the accident. This court also referred to the decision in Oriental Insurance Company. Ltd. Vs. Sunitha Rathi and others (supra), wherein the Hon'ble Supreme Court held that whenever there is express mention about the effective date and time of commencement of the insurance policy, the same will have to be taken into consideration to determine the liability of the insurer. 4 ILR 2009 KAR 3332
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25. National Insurance Company Ltd. Vs. Honappa and Others5. This Court has considered the situation where the accident had taken place at 2.30 a.m. on the intervening night of 5/6 February 1994 and the insurance policy was obtained on 6/2/1994 during the office hours. It was held that since the insurance policy was obtained on the same day, even though after the accident, it operates from the previous mid-night and therefore, the Insurance Company will be liable.
26. Zameer Ahamed Vs.B.R.Narayana Shetty and another6, the Division Bench of this court has considered the point whether contract of insurance becomes effective from the date and time of receipt of premium and whether the insurance company is liable and it was held that insurance company cannot postpone assumption of liability after receipt of 5 ILR 1998 KAR 1962 6 212 ACJ 1322
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premium on the pretext of verification of vehicle and documents which has to be done before receipt of premium. Therefore, it was held that insurance company is liable, once it accepts the premium from the owner.
27. I have gone through these decisions relied on by the learned Advocates for the parties.
28. In National Insurance Co. Ltd. and Others Vs. Bhadramma and Others (supra), the Division Bench of this Court has observed that the time when premium was received was not mentioned in the policy and under such circumstances, the Insurance Company was liable. In Zameer Ahamed Vs.B.R.Narayana Shetty and another case stated supra, even after receipt of premium, the conduct of the insurance company in postponing the assumption of liability held was not proper. But in the preset case, there is no dispute about the assumption of liability by the
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Insurance Company as could be seen from Exs.R1, 2 and 4. Even though the owner of the vehicle contended that he had paid insurance premium at 10.00 a.m., the said contention is not supported by any of the documents that are placed before the Court.
29. On the other hand, Exs.R.1, 2 and 4 are clearly go to show that the premium was paid at 15.34.28 hours on 2/12/2003 and the policy as per Ex.R4 was issued with effect from 00.00 O'clock on 3/12/2003 mid-night to 2/12/2004. It is not in dispute that the accident had taken place at 2/12/2003 at 1.00 p.m. Therefore, it is very clear that the premium was paid by the owner only after the accident at 1.00 p.m., by suppressing the material fact. Under such circumstances, decision relied on by the learned Advocate for the Insurance Companies referred to above applies to the facts of the case.
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30. Even though the learned Advocate for the owner has relied on the decision in National Insurance Company Ltd. Vs. Honappa and Others (supra), the position of law laid down in the subsequent decision of the Hon'ble Supreme Court, makes it very clear that where there is express mention in the cover note about the effective date and time of commencement of the coverage of insurance for the purpose of the Act, same will have to be taken into consideration and the Insurance Company will not be held liable for the accident that had occurred earlier to that point of time. Therefore, I am of the opinion that the contention of the owner of the offending vehicle cannot be accepted, in the absence of any material to substantiate the same. On the other hand, the contention taken by the Insurance Company that the premium was paid and insurance policy was obtained subsequent to the occurrence of the accident is probabalised by producing
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sufficient materials and I do not find any reason to reject the same.
31. I have gone through the impugned judgment and award passed by the Tribunal at Haveri in MVC No.36/2006. The Tribunal has taken into consideration of the contentions of the parties in proper perspective and held that it is only the owner of the offending vehicle is liable to pay the compensation and not the Insurance Company. I do not find any reason to interfere with the same.
32. On the other hand, in the impugned common judgment and award passed by the Tribunal at Ranebennur in MVC Nos.373/2004 and 31/2006, the tribunal proceeded to pass the same, rejecting the defence taken by the Insurance Company and accepting the contention taken by the owner that the premium was already paid and therefore, the Insurance Company is liable to pay the compensation to the claimants. It is
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clear from the impugned common judgment that the Tribunal has not applied its mind and had not taken into consideration the specific defence taken by the Insurance Company and the materials placed before the Court in support of the same in the light of the settled proposition of law. Therefore, I am of the opinion that the impugned common judgment and award passed by the Tribunal at Ranebennur deserves to be interfered with. The liability of the Insurance Company fixed under the said judgment and award is liable to be set aside.
33. Accordingly, this Court proceed to pass the following:
ORDER MFA No.23612/2009 is dismissed as devoid of merits.
MFA Nos.21737/2011 and 21738/2011 are allowed. The impugned common judgment and
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award passed by the Addl. Senior Civil Judge and AMACT, Renebennur in MVC No.373/2004 and 31/2006 is modified. Claim of the claimants against National Insurance Company for compensation, is dismissed.
Registry is directed to send back the trial Court records.
The other portion of the order remains as it is.
SD/-
JUDGE Vmb