Karnataka High Court
Sudharshan S/O Hanmanth vs Sri Subash on 2 December, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
M.F.A. NO.31894/2012 (MV)
Between:
Sudharshan S/o Hanmanth
Aged about 28 years,
Occ. Plastering Work,
Now : Nil, R/o. Aliabad,
Tq. & Dist. Bidar.
... Appellant
(Sri Santosh Biradar, Advocate)
And:
1. Sri Subash
S/o Bakkappa Mathanshetty,
Aged : Major, Occ.: Business,
R/o Imambad Halli,
Tq. & Dist. Bidar.
2. The Manager,
United India Insurance Co.Ltd.,
Branch Office, 9-2-24/5,
1st Floor, Main Road, Bidar.
... Respondents
(By Sri Ravi B.Patil, Advocate for R1;
Sri Sanjay M.Joshi, Advocate for R2)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to allow the appeal, modify the
2
impugned judgment and award dated 27.06.2012 passed by
the Court of the Principal Motor Accident Claims Tribunal
cum Principal District Judge, Bidar in MVC No.414/2009
and enhance the compensation as prayed for by fixing the
entire liability on respondent No.2-Insurance Company.
This appeal having been heard and reserved for
judgment, coming on for "Pronouncement of judgment"
this day, the Court delivered the following;
JUDGMENT
The above appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act (for short 'the M.V.Act') challenging the judgment and award dated 27.06.2012 passed in MVC No.414/2009 by the Principal Motor Accident Claims Tribunal cum Principal District Judge, Bidar (hereinafter referred to as 'the Tribunal' for brevity) for enhancement of compensation as well as fixing liability on the respondent No.2- Insurance Company.
2. Brief facts of the case are as follows :-
It is stated that on 07.05.2008 at 1.30 pm on Bidar-Ashtoor road, the claimant and some others had hired a Maxicab bearing No.KA-38/1568 to take journey 3 from one point to another point and accordingly they have boarded the said vehicle at Bidar and were proceeding from Bidar to Jampad to attend a marriage.
From the beginning the driver of the vehicle was driving the same with high speed on Bidar-Ashtoor road. In the limits of Marjapur, the driver lost his control over the vehicle due to high speed and dashed against an electric pole, resulting the vehicle turn turtled. In that ghastly accident, the claimant and other persons who were traveling in the said vehicle sustained injuries.
The claimant has sustained grievous injuries to his both hands, chest, forehead, right leg and also received compound fracture to right humorous and right upper limb. It is contended that the accident occurred due to rash and negligent driving of the said vehicle by its driver. For sustaining of grievous injuries the claimant has filed claim petition before the Tribunal under Section 166 of the M.V.Act and the Tribunal has awarded compensation of Rs.1,07,300/- along with 4 interest at the rate of 6% per annum from the date of petition till realization, fastening the liability on respondent No.1.
3. The learned counsel for the appellant submitted that as on date and time of the accident there was contract of insurance was in existence between respondents No.1 and 2. Much prior to the accident the respondent No.1-owner has paid premium amount to respondent No.2-Insurance Company and had purchased insurance policy and hence the risk as per Insurance Policy is covered but the same is not appreciated by the Tribunal and thus, resulted into passing of judgment and award erroneously fastened liability on respondent No.1-owner.
4. Further submitted that in the present case the accident was occurred on 07.05.2008 at 1.30 pm and before that the respondent No.1 has paid premium. Therefore, there is valid contract of insurance between 5 respondents No.1 and 2 and even though the Insurance Policy is commenced from the time 00.00 hours on 08.05.2008 but this delay is because of the process of documents after purchasing the insurance policy by making payment of premium. Therefore, submitted much prior to the accident the respondent No.1 has paid premium amount to respondent No.2-Insurance Company. Therefore, this being the coverage of insurance in respect of risk of inmates of the maxi cab from the time of payment of premium.
5. Further, the learned counsel for the appellant/claimant submitted that the amount of compensation awarded under the various heads is on lower side, therefore prays for enhancement of compensation.
6. On the other hand, the learned counsel for respondent No.2-Insruance Company submitted that as on the date and time of the accident there was no 6 Insurance Policy. Ex.P.11 is the Insurance Certificate which commences at 00.00 hours on 08.05.2008 for the next even year but the accident was caused on 07.05.2008 at afternoon 1.30 pm. Therefore, as on date and time there was no Insurance Policy hence, considering these evidences on record the Tribunal has rightly exonerated respondent No.2-Insurance Company and has rightly fixed the liability on respondent No.1- owner.
7. In the present case admittedly the accident was caused on 07.05.2008 at 1.30 pm on Bidar - Ashtoor road while the appellant was travelling in the Maxi cab bearing Reg.No.KA-38/1568 had sustained injuries in the said accident.
8. It is the contention of appellant that respondent No.1 had purchased the insurance policy by making payment of premium on 07.05.2008 itself during office hours at morning at about 10.30 am and 7 some time is taken for processing the documents. Therefore, the Certificate of Insurance was issued commencing from 00.00 hours on 08.05.2008 for further one year period. Therefore, it is the contention that just because insurance policy commences from the time 00.00 hours on 08.05.2008 cannot be made criteria that the risk is covered from that time onwards but the time of payment of premium is important criteria as soon after payment of premium the contract of insurance begins between the parties.
9. The rival contention is that wherein the policy/certificate of insurance the time and date is mentioned therein from that time itself the contract of insurance begins but not the time and date of premium is paid. But as per owner of vehicle from the time of payment of premium risk is covered.
10. The contract between insurer and insured is governed by the provisions of the Insurance Act, 1938. 8 For resolving the controversy issue involved in the present case, it is worthwhile to extract Section 64VB of the Insurance Act, which as follows :-
"64VB. 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 purposes 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.
(3) Any refund of premium which may become due to an insured on account of the cancellation of a policy or alteration in its terms and conditions or otherwise shall be paid by the insurer directly to the insured by a crossed or order cheque or by postal money order and a proper receipt shall be obtained by the insurer from the insured, and such refund shall in no case be credited to the account of the agent. 9
(4) Where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of the collection excluding bank and postal holidays.
(5) The Central Government may, by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies.] 1[(6) The Authority may, from time to time, specify, by the regulations made by it, the manner of receipt of premium by the insurer.]
11. The learned counsel for the appellant relied on the following decisions of the Hon'ble Apex Court as well as this court. This court in the case of Yellamma v. Bhy Sukhadev Singh and another [2006 (3) KCCR 1842], after making interpretation of Section 64-VB of the Act, were pleased to observe at paragraph 4, which as follows :-
"4. The above provision disclose that a policy can be issued against the issuance of a cheque and the liability commences from the date of issuance of cheque and not from the date of its encashment. There is no provision in law that the consideration for policy should flow only from the insured and not from the third party. The 10 Development Officer has acted in a hasty manner. No attempt was made to present the cheque for encashment. If the cheque was encashed it was well and good for the insurer otherwise steps could have been taken for cancellation of the policy Ex.R.1. The reason that the cheque is not issued by the insured is not a ground for valid cancellation. The endorsement of cancellation is vague, it does not bear the date. The officer who has made endorsement of cancellation is not examined. The endorsement of the insured is not taken on the policy to substantiate that the cancellation was with due notice and knowledge by the insured. Therefore under the above circumstances, the very cancellation of the policy for untenable reason is bad in law. The accident has occurred within 15 days from the date of issue of cover not. Hence, the insurer is liable to pay the compensation."
12. In similar set of facts, the Hon'ble Apex Court in the case of Oriental Insurance Co.Ltd., v. Dharam Chand and others [2011 Kant, M.A.C.138 (SC)] were pleased to observe with reference to facts 11 involved in the said case from paragraphs 1, 2 and 3, which are reproduced as under :-
"This appeal arises from a motor accident claim. In this case, the premium cheque for the insurance policy was received by the appellant, the Insurance Company, on May 7, 1998 at 4.00 pm and a cover note was issued at the same time. In columns 3 & 4 of the cover note, however, it was stated that the insurance would commence from May 8, 1998 and expire on May 7, 1999.
2. The motor accident in regard to which the claim case was filed took place at 8:30 pm on May 7, 1998. The insurance company sought to disown its liability on the plea that the accident took place before the commencement of the insurance as indicated in the cover note. But, both the Tribunal and the High Court, turned down the plea and held the Insurance Company liable to pay the compensation amount.
3. When this appeal was taken up, counsel for the insurance company very fairly stated that since the cheque for the premium amount was received by the company at 4:00 pm on May 7, 1998, the insurance must be deemed to have commenced from that time and four hours later 12 when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy. We appreciate the fairness shown by the counsel for the insurance company."
13. In Dharam Chand's case (supra) by accepting the submissions of the counsel for Insurance Company that the cheque for the premium amount was received by the Company at 4.00 pm on 07.05.1998. Therefore, the insurance is deemed to have commenced from that time at 4.00 pm and the accident was taken place after that at 8.30 pm. Therefore, it was held the risk is covered from the time at 4.00 pm since at that time the cheque for the payment of premium was received by the Insurance Company. Therefore, it is appreciated by the Hon'ble Apex Court that from the time of receipt of premium the risk is covered.
14. Further the Division Bench of this Hon'ble High Court of Karnataka in the case of National 13 Insurance Co.Ltd., v. Smt.Bhadramma and others [ILR 2009 KAR 3332], in the similar set of facts and circumstances at paragraphs 13, held as follows :-
"13. The decision of the Supreme Court in SUNITHA RATI'S (supra) also lays down salutary principle of law that the liability of the insurer would commences from the date of the policy. If any times is mentioned in the policy, from that time the liability becomes effective and not earlier to that. The coverage of insurance for a motor vehicle would virtually stand on a different footing unlike in the other types of contract of insurance. It is mandatory that third party risk should be covered when a vehicle has to ply in a public place. The appellant being the State authority doing business of insurance is duty bound to honour and implement the provisions of law. Sec.64(v)(b) declares that the insurer can assume the risk only upon the receipt of premium. May be, that in other types of contracts where insurance is sought, the insurer may have the discretion to enter into a contract or not. But in respect of Motor vehicles there is no discretion on the part of the appellant. The appellant has to enter into the contract and issue policy in accordance with 14 law, if proper premium is paid. In the context of the said factual and legal situation, it is to be held that in a contract of insurance in respect of motor vehicles the issuance of policy becomes effective when premium is received. The insurer cannot postpone the assumption of liability after receipt of premium. The necessary verification of vehicle and the documents should be done before receipt of premium. However, under the said pretext, the insurer cannot postpone the assumption of risk, other than from the date and time of receipt of premium. Otherwise, the insurer would be guilty of abating the use of vehicle in a public place without policy."
15. In Smt.Bhadramma's case (supra) Ex.R1 is the receipt of premium but the time of payment of premium is not mentioned. The accident was occurred at 11.15 am. It was taken judicial note of the fact that the office practice of the insurer is to receive the premium from 10.00 am to 3.00 pm., which corresponds to banking hours. Therefore, the risk is covered by the following ratio laid down in Sunita 15 Rati's case [AIR 1998 SC 257] and accordingly it is held the Insurer is liable to pay the compensation.
16. On the other hand, the learned counsel for Insurance Companies relied on the decisions of the Hon'ble Apex Court as well as this court. In the case of New India Insurance Company v. Bhagwati Devi and others [(1998) 6 Supreme Court Cases 534], it is observed at paragraph 2, with reference to facts as follows :-
"2. The facts giving rise to the appeal are minimal. The appellant-insurance company sold a policy at about 4 p.m. on 17-2-1989. Undeniably, it had been bought at a time when an accident pertaining to the vehicle insured had already taken place at about 9 a.m. the same day. The fatal accident occurring thereby gave rise to a claim for damages before the Motor Accident Claims Tribunal. The same was allowed on the strength of the decision of this Court aforementioned, correctness of which has been challenged. The said decision proceeded on the legal fiction that when a policy is taken on a 16 particular date, its effectiveness would start from the commencement of that date which is from the previous midnight. The accident taking place at any time during the day would be covered by the policy. Later a three-member Bench of this Court in National Insurance Co. Ltd. v. Jikubkai Nathuji Dabhi, [(1997) 1 SCC 66] has taken the view that when there is a special contract mentioning in the policy the time when it was bought, it would be operative from that time and not fictionally from the previous midnight. In the said case, the policy had been bought at about 4 p.m. on the day of the accident and, thus, was not allowed to be operative from midnight; the accident having occurred around 11 a.m. on that date. The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon."17
17. Further in the case of National Insurance Co.Ltd., v. Sobina Iakai and others [2007 (3) T.A.C. 19 (S.C)] and in this case, the Insurance Policy obtained at 2.00 pm on 20.07.1994 whereas the accident occurred on the same day at morning 9.15 am. In that factual matrix it was observed at paragraphs 12 and 13, which are as follows :-
"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 18 High Court has led to serious miscarriage of justice."
18. Therefore, it was held that as on the time of purchasing the Insurance Policy the covering of risk starts. The Hon'ble Apex Court in the above Sobina Iakai's case were pleased to discuss the principle of law in various decisions, at paragraphs 14, 15, 16, 17 and 18, which are reproduced as under :-
"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 19 mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the special contract mentioned in the insurance policy, it would be operative from the time and date the insurance policy was taken. In that case, the insurance policy was taken at 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto. This Court held that the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.
16. Another three-Judge Bench of this Court in M/s Oriental Insurance Co. Ltd. v. Sunita Rathi [(1998) 1 SCC 365] dealt with similar facts. In this case, the accident occurred at 2.20 p.m. and the cover note was obtained only thereafter at 2.55 p.m. The Court observed that the policy would be effective from the time and date mentioned in the policy.
17. In New India Assurance Co. vs. Bhagwati Devi [1998 (6) SCC 534], this Court observed that, in absence of any specific time and date, the insurance policy becomes operative from the previous midnight. But when the specific time and date is mentioned, then the insurance policy 20 becomes effective from that point of time. This Court in New India Assurance Co. Ltd. v. Sita Bai (1999) 7 SCC 575 and National Insurance Co.
Ltd. v. Chinto Devi [(2000) 7 SCC 50] has taken the same view.
18. In Kalaivani & Ors. v. K. Sivashankar & Ors. [JT 2001 (10) SC 396], this Court has reiterated clear enunciation of law. The Court observed that it is the obligation of the Court to look into the contract of insurance to discern whether any particular time has been specified for commencement or expiry of the policy. A very large number of cases have come to our notice where insurance policies are taken immediately after the accidents to get compensation in a clandestine manner."
19. Therefore, in Sobina Iakai's case (supra) the facts are that the owner had purchased the insurance policy at 2.00 pm on 20.07.1994 but the accident was occurred on the same day at morning 9.15 a.m. Therefore, under these factual matrix it was held the Insurance Company is not liable to pay the compensation.
21
20. Further the Hon'ble Apex Court in the case of New India Assurance Co.Ltd., v. Harshadbhai Amrutbhai Modhiya and another [(2006) 5 Supreme Court Cass 192] dealt with regard to terms of a contract of insurance would depend upon the volition of the parties. At para 15, it is observed as follows :-
"15. The terms of a contract of insurance would depend upon the volition of the parties. A contract of insurance is governed by the provisions of the Insurance Act. In terms of the provisions of the Insurance Act, an insured is bound to pay premium which is to be calculated in the manner provided for therein. With a view to minimise his liability, an employer can contract out so as to make the insurer not liable as regards indemnifying him in relation to certain matters which do not strictly arise out of the mandatory provisions of any statute. Contracting out, as regards payment of interest by an employer, therefore, is not prohibited in law."
21. Further the Hon'ble Apex Court in the case of New India Assurance Co.Ltd., vs. C.M.Jaya and others 22 [AIR 2002 SC 651], where dealing with regard to the terms of contract between the insured and insurer and therefore it is held that the insurer is bound by the terms of contract as specified in the policy and at para 7 which reads as follows :-
"7. On a careful reading and analysis of the decision in Amrit Lal Sood (supra), it is clear that the view taken by the Court is no different. In this decision also, the case of Jugal Kishore is referred to. It is held (i) that the liability of the insurer depends o the terms of the contract between the insured and the insurer contained in the policy; (ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statue whereby risk to the gratuitous passenger could also be covered; and
(iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered to determine the liability of the insurer. Hence, the Court after noticing the relevant clauses in the policy, on facts found that under Section II-1(b) of the policy, the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any 23 person". The expression "any person" would undoubtedly include an occupant of the car who is gratuitously traveling in it. Further, referring to the case of Pushpabai Purshottam Udeshi (supra), it was observed that the said decision was based upon the relevant clause in the insurance policy in that case which restricted the legal liability of the insurer to the statutory requirement under Section 95 of the Act. As such, that decision had no bearing on Amrit Lal Sood's case as the terms of the policy were wide enough to cover a gratuitous occupant of the vehicle. Tus, it is clear that the specific clause in the policy being wider, covering higher risk, made all the different in Amrit Lal Sood's case as to unlimited or higher liability. The Court decided that case in the light of the specific clause contained in the policy. The said decision cannot be read as laying down that even though the liability of the insurance company is limited to the statutory requirement, an unlimited or higher liability can be imposed on it. The liability could be statutory or contractual. A statutory liability cannot be more than what is required under the statute itself. However, there is nothing in Section 95 of the Act prohibiting the parties from contracting to create unlimited or higher liability to cover wider risk. In such an 24 event, the insurer is bound by the terms of the contract as specified in the policy in regard to unlimited or higher liability as the case may be.
In the absence of such a term or clause in the policy, pursuant to the contract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to re-writing the statute or the contract of insurance which is not permissible."
22. Further this court in the judgment between The Divisional Manager vs. Sri Basavaraj and others in MFA N.21737/2011 connected MFA Nos.21738/2011 and MFA No.23612/2009 were pleased to hold that the risk as per Insurance Policy commences from the time of payment of premium. In the facts and circumstances in the above cited case, the premium was paid at 15.34 hours on 02.12.2003 and the policy was issued with effect from 00.00 hours on 03.12.2003 (mid night). Therefore, on that factual matrix involved as per the documents placed regarding time of payment of premium is concerned, the accident was taken place at 25 1.00 pm on 02.12.2003 and subsequently at 15.34 hours on 02.12.2003 premium was paid. Therefore, under these facts and circumstances that before the time of making payment of premium the accident was caused. Therefore, it was held the insurer is not liable to pay compensation.
23. Therefore, this ratio laid down as discussed above, the risk is covered from the time of payment of premium as per the contract of insurance between the insurer and insured. In Sobin Iakai's case (supra) the propositions of law based on the judgment of Hon'ble Apex Court is culled out by Gauhati High Court and which is reflected in para 8 in the said case and it is also observed that the culling out of propositions of law made by the Gauhati High Court is correct and the said propositions of law as culled out and is reflected at para 8 in the said judgment is reproduced as under :-
"8. The appellant Company, being aggrieved by the order of the Tribunal, filed 26 M.A.(F) No.4 (SH) of 1998 before the Shilong Bench of the Gauhati High Court. The High Court noticed the pleadings and referred to the decided cases of this Court. The High Court, after discussing the various judgments of this Court, culled out the following propositions of law :
"(i) If time is mentioned in the insurance policy or cover-note, the effectivness of the policy would start from that time and date and not from an earlier point of time;
(ii) If the accident takes place on that very date before the time which is mentioned in the insurance policy, the insurer will not be liable to indemnify the insured;
(iii) If the time is not mentioned in the insurance policy, it would commence from the date which means midnight and in case the accident occurred on the date of taking the policy, the insurer will be liable to meet the liability of the insured under the award.""
24. In the present case, the accident was caused on 07.05.2008 at 1.30 pm. Ex.P11 is the Insurance Certificate which states commencement of the period of 27 Insurance Policy from 00.00 hours on 08.05.2008 for next 12 months. It is contended that on 07.05.2008 itself during office hours starting from 10.00 am the premium was paid. It is contended that soon after commencement of office hours of the Insurance Company the appellant/owner has paid premium after insurance officials inspecting the vehicle which was found to be fit in condition and then the insurance agent processed the documents and for processing the documents some time is taken therefore quite naturally in the Insurance Policy it is said that commencing from 00.00 hours on 08.05.2008. Therefore, just because the Insurance Policy commences from 00.00 hours on 08.05.2008 that does not mean that the risk is covered from that time 00.00 hours on 08.05.2008 itself because so far as the time of commencement of Insurance certificate there is no specific contract between owner and the Insurance Company in the present case. Therefore, whatever the commencement of 28 time is made in Ex.P.11 is a general term as put by the Insurance Company on every policies in absence of contract of mentioning specific time. Therefore, that alone cannot be made for treating the commencement of the risk from 00.00 hours on 08.05.2008 considering the facts and circumstances involved into the case on 07.05.2008 itself during the day time soon after commencement of the office hours premium is paid by the owner.
25. In this regard, as either of the parties have not produced receipt for payment of premium as to at what time premium was paid. Therefore, under these circumstances the provision stated in Section 64VB of the Act is to be considered vis-à-vis Ex.P.11-Insurance Policy. Therefore, as per Section 64VB of the Act above stated, the provision is very clear that soon after the receipt of the payment of premium by the owner and received by the Insurance Company then the contract of insurance begins between them. Issuance of policy is 29 consequent effect after receipt of premium. If there is a specific contract is made between the insurer and the insured that the risk is to be covered from that point of time itself is concerned, then that shall be specifically stated in the Insurance Policy and it is a specific contract between the insurer and insured so far as time of commencement of risk. If there is no specific contract stating to cover the risk from that particular point of time then generally in the Insurance Policy it is stated that the Insurance Policy commences from 00.00 hours by mentioning the next day date commencing from 00.00 hours (mid night) on next date. Therefore, where there is no specific contract of mentioning time between insurer and insured regarding mentioning of time so as to cover the risk then generally the policy commences from 00.00 hours (mid night) by mentioning the date of the next day. In absence of mentioning specific time of commencement of covering risk, therefore upon considering this and applying the same in the present 30 facts and circumstances and by following the legal provision enshrined under Section 64VB of the Act it can be safely held that from the time of making payment of premium itself covering risk starts.
26. Before issuance of policy and muchless even before receiving premium amount from the owner the agent on behalf of Insurance Company will inspect the vehicle to say that whether it is in fit condition or if any damage is caused and after verifying the said facts, then amount of premium would be collected then the same would be disbursed to the Insurance Company during the course of the day or during the banking hours. Normally the office hours of receiving payment of premium by the Insurance Company commences from 10.30 am to 3.30 pm on par with the banking business hours. Therefore, when in the present case after receipt of the premium amount by the owner and obviously it is after verification of the vehicle itself by its agent or any of the officials then starts to receive premium and starts 31 processing the documents for issuance of Insurance Policy. Therefore, it means the owner has paid premium during office hours soon after commencement of office hours at morning 10.30 am and therefore it can be safely held that the Insurance Company had received premium, in the present case before the time of accident on 07.05.2008 and therefore upon analyzing the entire facts and circumstances involved in to the case coupled with the legal provisions enshrined under Section 64VB of the Act and principle of law laid down by the Hon'ble Apex Court (supra) after payment of premium is made then thereafter the accident was caused in the present case, therefore the Insurance Company is liable to indemnify the owner as per the contract of insurance between them as per Ex.P.11-Insurance Certificate. Therefore, under these circumstances when the entire facts and circumstances are considered coupled with the legal provisions as discussed above as stated in Section 64VB of the Act and also principle of law laid 32 down by this Court and the Hon'ble Apex Court the respondent No.2 -Insurance Company is liable to pay the compensation by indemnifying the owner of the vehicle/respondent No.1. Therefore, in this regard the judgment and award made by the Tribunal is liable to be modified.
27. In the present case the appellant had sustained fracture of right shaft humerous as per Ex.P.3-wound certificate and which is grievous in nature and considering the profession of the appellant who was doing plastering work the compensation amount awarded by the Tribunal of Rs.10,000/- under the head towards pain and suffering is on lower side. Therefore, the same is to be enhanced and accordingly a compensation of Rs.20,000/- is awarded under the head towards pain and suffering.
28. Further the Tribunal has awarded Rs.3,287/- under the head 'medical expenses' the same 33 is as per the medical evidences produced before the Tribunal and hence there is no need to disturb the same accordingly kept intact.
29. Further the Tribunal has awarded compensation of Rs.10,000/- towards attendant and conveyance charges but the same is considered to be on lower side and accordingly a compensation of Rs.15,000/- is awarded under the said head.
30. The Tribunal has considered notional income of Rs.4,000/- per month and considered 8% of disability and accordingly multiplied by the relevant factor. As per the age of the appellant as 18 years, then awarded a compensation of Rs.76,032/- under the head 'loss of future earning' due to the disability. Therefore, considering the profession of the appellant as plastering work that he had suffered fracture of right humerous and the profession of the appellant as he was doing plastering work certainly that such disability affects his 34 earning capacity. Therefore, the percentage of disability taken by the Tribunal is slightly on lower side and therefore, it is considered at 10%.
31. Further considering the year of the accident occurred which is in the year 2008 a notional income of Rs.4,250/- is to be considered prevailing living expenses in that year and considering the income adopted by the Legal Services Institutions. Accordingly, the compensation under the head 'loss of future earning' due to disability is recalculated and quantified as follows :-
Rs.4,250x10/100x18x12=91800/-
Thus, the appellant is entitled for compensation of Rs.91,800/- under the head 'loss of future earning' due to disability.
32. Further the Tribunal has awarded compensation of Rs.8,000/- under the head 'loss of earning' due to laid-up period as presuming the fact 35 that the appellant atleast must have been undergone laid-up both in the hospital as well as in the home but considering the income at Rs.4,250/- per month above stated, the appellant must have spent two months for laid-up period for taking treatment for the injuries sustained by him and also for taking rest due to the said injuries for two months. Accordingly, a compensation of Rs.8,500/- is awarded under the head 'loss of earning' for two months during laid-up period. Thus, in all the appellant is entitled for compensation under the following heads :-
1. Towards loss of future earning Rs.91,000/-
2. Toward medical expenses Rs,3,287/-
3. Towards attendant and Rs.15,000/-
conveyance charges
4. Towards injuries, pain and Rs.20,000/-
suffering
5. Towards loss of earning during Rs.8,500/-
laid-up period Total Rs.1,37,787/-
33. The Tribunal has already awarded a sum of Rs.1,07,300/-. Hence, after deducting the same, the 36 appellant is entitled for additional compensation of Rs.30,487/- (Rs.1,37,787-Rs.1,07,300) with interest at 6% p.a. from the date of petition till realization.
34. Therefore, the judgment and award passed by the Tribunal is liable to be modified for the reasons stated above both on the quantum aspect as well as on the liability to pay the compensation. In view of the discussion and reasons made above, the respondent No.2-Insurance Company shall pay the compensation to the appellant by indemnifying the respondent No.1 owner. Accordingly, I proceed to pass the following :-
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and award dated 27.06.2012 passed by the Principal Motor Accident Claims Tribunal cum Principal District Judge, Bidar in MVC No.414/2009 is hereby modified.
iii) The appellant is entitled to an additional compensation of Rs.30,487/- with interest at 37 6% p.a. from the date of the claim petition till realization, in addition to what has been awarded by the Tribunal.
iv) Respondent No.2 - Insurance Company is directed to deposit the said amount within a period of six weeks from the date of receipt of a certified copy of this judgment.
v) Draw award accordingly.
vi) No order as to costs.
Sd/-
JUDGE
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