Madras High Court
M/S.United India Insurance vs Tmt.Malar Alias Malarkodi on 22 December, 2006
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/12/2006 CORAM : THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.345 of 2000 and C.M.P.No.3005 of 2000 M/s.United India Insurance Company Limited, Super Bazaar, Trichy. ... Appellant vs. 1. Tmt.Malar alias Malarkodi 2. Dhanapal ... Respondents Prayer Appeal filed under Section 30 of Workmen's Compensation Act against the order dated 13.7.98 made in W.C.No.79 of 1996 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner for Labour) at Tiruchirappalli. !For Appellant ... Mr.J.S.Murali ^For R1 ... Mr.A.Saravanan For R2 ... No appearance :JUDGMENT
This appeal preferred under Section 30 of the Workmen's Compensation Act, 1923 is directed against the award dated 13.7.1998 passed by the Commissioner for Workmen's Compensation (Deputy Commissioner for Labour), Tiruchirappalli and made in W.C.No.79/1996.
2. The second opposite party before the Commissioner namely, the Insurance Company is the appellant herein. The first opposite party/employer of the injured is the second respondent herein. The injured claimant is the first respondent in appeal. The first respondent herein had made a claim before the Commissioner, Workmen's Compensation, Tiruchirappalli for the injuries allegedly sustained by her on 22.4.1996 at about 11.30 a.m. contending that she sustained the injuries in an accident that occurred during the course of her employment as load woman in the lorry belonging to the second respondent herein bearing Registration No.TN.Y.3597. The claim was primarily made against the second respondent herein as the owner of the lorry cum employer of the victim. Based on the alleged contract of insurance between the employer and the insurance company namely, the appellant herein, the claim was also made against the appellant herein. The second respondent herein who had been arrayed as the first opposite party in the W.C., filed a counter statement-admitting the claimant's contention that she was employed as a load woman and that the accident took place during the course of and out of employment and that she sustained injuries in an accident arising and in the course of employment. Without disputing his liability to pay compensation for the injuries sustained by the claimant, the Second respondent herein contended that the appellant herein/Insurance Company, by virtue of the insurance policy issued to the vehicle, was liable to shoulder his liability and pay the compensation to the claimant. On the other hand, the appellant herein/second opposite party in the W.C. contended that at the time of accident, there was no policy of insurance in force and hence, the appellant/Insurance Company was not liable to pay compensation on behalf of the second respondent herein.
3. After enquiry, on an appreciation of evidence adduced on both sides, the commissioner held that the appellant herein was liable to pay compensation to the claimant and directed the appellant herein to pay a sum of Rs.89,227/- together with an interest at the rate of 12% per annum from the date of accident till realisation. The Commissioner has not even chosen to fix the liability at the first instance on the owner of the vehicle and then, fasten liability on the insurer based on the contract of insurance. Straightaway the Commissioner has mulcted the liability on the Insurance Company (appellant alone) without uttering anything against the owner of the lorry namely, the second respondent herein. Aggrieved by the same, the appellant herein has come forward with this appeal challenging the correctness of the above said findings of the Commissioner.
4. I have heard the arguments advanced by Mr.J.S.Murali, learned counsel appearing for the appellant and Mr.A.Saravanan, learned counsel appearing for the first respondent. The second respondent herein has not entered appearance inspite of service of notice.
5. Now the short question that arises for consideration in this appeal, which is also the substantial question of law raised in this appeal, is as follows:
Whether the policy of insurance shall be deemed to have come to force from the previous mid night even though a specific time is mentionedss in the policy of insurance denoting the time of commencement?
6. The question of commencement policy had been considered long back by a three-Judge Bench of Supreme Court in (National Insurance Company Limited Vs. Jikubhai Nathuji Dabhi and others) reported in 1997 ACJ 351. The Apex Court has held that the policy came into force only at 4.00 p.m. on a particular date as it was specifically mentioned in the said policy that it would come into force from the said time. The observations made in Ram Dayal's case by the Apex Court reported in 1990 ACJ 545 has been distinguished. In the above said case (Ram Dayal's case) it had been 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 1897.
7. In 1998 ACJ 121 SC (Oriental Insurance Company Limited Vs. Sunita Rathi and others), the very same view has been expressed by the Apex Court wherein, the accident took place just 35 minutes prior to the time with effect from which a cover note was obtained. The said judgments of the Supreme Court have been followed by the Division Bench of Madras High Court in (National Insurance Company Limited Vs. Geetha and others) reported in 2006 ACJ 700. In the said case, though premium was paid in the forum of a cheque on 12.6.1998 itself, a policy operative from 10.00 a.m. on 15.6.1998 had been issued by the Insurance Company. Rejecting the contention of the respondents therein, in the said judgment, the Division Bench made a distinction between payment of premium for renewal of policy before the expiry of the previous policy and payment of premium after the expiry of the previous policy and came to a conclusion that payment of premium after the expiry of the previous policy should be considered only as a fresh offer for getting a fresh policy and not a renewal of the earlier policy.
8. The cumulative effect of the observation made by the Apex Court and the Division Bench of this Court discussed above will give raise to the following settled preposition of law:-
1) In case no specific time is mentioned, the policy will come into force from the previous mid night;
2) In case any specific time is mentioned, it will come into force from that time only.
9. In this case, it is not in dispute that the policy issued by the appellant contained a specific Clause that it would come into force "from 4.00 p.m. on 22.4.1996." The said insurance policy has been marked as Ex.R.1. From Ex.R.1, it is quite clear that the same was issued to be effective only from 4.00 p.m. on 22.4.1996. Admittedly the accident took place at 11.30 hours on 22.4.1996. The complaint itself was received by the police at 1.00 p.m. on 22.4.1996 as evidenced by Ex.A.1. From Ex.A.2, the copy of the receipt evidencing payment of premium, it is obvious that the previous policy expired on 1.3.1996 and from 2.3.1996 to 22.4.1996, there was no policy in force. Since there is cogent evidence on the side of the appellant/second opposite party in the form of deposition of its Branch Manager and Ex.R.1, the insurance policy to the effect that the policy was issued to be with effect from 4.00 p.m. on 22.4.1996, there is no scope for holding that the same would have come into force from the previous mid night. Therefore, I do hereby come to a conclusion that the Commissioner has committed an error in coming to the conclusion that the policy had come into force from 00 hours of 22.4.1996 and not from 4.00 p.m. on the said date as found in the policy.
10. From the above said discussions, it will be quite clear that any view other than the one that the policy came into force at 4.00 p.m. on 22.4.1996 is impossible. Therefore, it is hereby held that the appellant herein/second opposite party (Insurance Company) is not liable to pay compensation on behalf of the owner of the lorry namely, the second respondent herein. On the other hand, the second respondent herein/the first opposite party being the employer of the first respondent/claimant alone is liable to pay compensation to the first respondent as per the Workmen's Compensation Act. As no challenge is made regarding quantum of compensation, the award of the Commissioner does not need any interference on the question of quantum and the same is liable to be confirmed.
11. In the result, this appeal is allowed. The award passed against the appellant/second opposite party is set aside. The second respondent herein/the first opposite party in the W.C. is held liable to pay compensation as determined by the Commissioner in the W.C.No.79 of 1996. Time is granted for one month from today for depositing the award amount.
12. In view of the finding that the appellant is not liable to pay compensation. The appellant is at liberty to withdraw the amount deposited as a condition precedent for filing this appeal with interest if any, accrued thereon. Connected C.M.P.No.3005 of 2006 is closed. No costs.
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