Karnataka High Court
Branch Manager, National Insurance Co. ... vs Hamza And Anr. on 5 September, 2003
Equivalent citations: 2005ACJ325, ILR2004KAR651, 2004 AIR - KANT. H. C. R. 977, (2004) 105 FJR 1033, (2005) 3 TAC 631, (2004) 1 KCCR 388, (2005) 1 ACJ 325
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
1. In this appeal the Insurance Company is challenging the liability saddled on it. The claimant - first respondent - Hamza sustained certain injuries in a road traffic accident on 4.8.1997. While driving an autorickshaw bearing No. CTX 9512, under the employment of second respondent. He presented a claim petition before the Commissioner claiming compensation under the provisions of Workmen's Compensation Act.
2. The appellant-Insurance company, on the ground that the details of the policy were furnished in the claim petition expressed its difficulty to admit its liability. It was also contended that the claimant did not possess a valid driving licence to drive the vehicle on the date of accident. However, during the course of evidence; the policy was produced by the claimant and marked as Ex.P4. As per the terms and conditions of the policy, the policy had come in to force from 5.8.1997 and was valid up to 4.8.1998. The second respondent/employer by paying premium on 4.8.1997 had obtained the policy on the same day. As per terms and conditions of Ex.P4, the policy would come into effect from 5.8.1997 and not from the date of payment of premium and issuance of policy. The Commissioner awarded a sum of Rs. 76,245/- as compensation fixing the liability on the Insurance Company on the ground that the company had received the payment on 4.8.1997. The said order is now challenged in this appeal contending that the Insurance Company is not liable to satisfy the award.
3. Learned Counsel for the appellant relying upon the judgment of the Supreme Court in J. KALAIVANI AND ORS. v. K. SHIVASHANKAR AND ANR. 2002 ACJ 613, contends that the appellant- insurance company is not liable to pay the compensation as the policy was not in force on the date of the accident.
4. Per contra, learned Counsel for the respondents, relying upon the judgment of this Court reported in T. DINAKAR v. P.J. JAGADIGH AND ORS. 2000 ACJ 228 contends that, as the premium was paid on 4.8.1997, the Insurance company has to satisfy the award.
5. After hearing the learned Counsel for the parties, the following points emerge for consideration of this Court;
1) Whether the Commissioner has powers to vary the terms and conditions of the policy?
2) Whether the appellant - company is liable to satisfy the award?
6. Facts in this case are not in dispute. Appellant - company has collected premium and issued insurance policy in favour of second respondent on 4.8.1997 but the policy would come into force from 5.8.1997 and not from the date and time of issuance of policy. The accident has occurred after insurance of policy by the appellant. The Commissioner considering that the premium was collected by the appellant prior to the accident ie., saddled the liability on the insurance company.
7. Therefore, what is required to be considered by this Court is whether the Commissioner has powers to vary the terms of the Contract. It is not in dispute that the appellant as well as second respondent owner of the vehicle are bound by the terms and conditions of the policy. As per terms and conditions of the policy it would come into force from 5.8.1997; even though the same was obtained on 4.8.1997. When the policy is issued by mutual consent, whether the terms of policy can be varied by the Commissioner, when second respondent has paid the premium and obtained the policy on 4.8.1997, there was no difficulty for him to insist the appellant-insurance company covering liability from the time and the date on which Ex.P-4 has been issued. Unfortunately, second respondent had not foreseen that his vehicle would met with an accident in between the time of issuance of policy and the date of; enforcement of policy. When second respondent has obtained the policy knowing fully well that the policy would come into force with effect from 5.8.1997, when the parties have not let any evidence to show the intention of the parties in regard to the terms and conditions of the policy, no Court can vary the terms and conditions of a concluded contract. Therefore, in the circumstances, this Court has to hold eventhough the premium was paid and policy was issued on 4.8.1997 much prior to the time of the accident as the policy will come into force from 5.8.1997; as per the terms of contract the appellant is not liable to indemnify the owner in between the time and date on which the policy is issued and the time of enforcement of the policy.
8. Considering the background of this case, by following the judgment of the Supreme Court reported in 2002 ACJ 613 cited supra, this Court has to allow the appeal and set aide the judgment and award passed against the appellant - company.
9. In the result, the appeal is allowed. Order of the Commissioner is hereby set aside in so far as the appellant - insurance company is concerned. Amount in deposit shall be refunded to the appellant - insurance company.