1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.5752/2000 Neeraj Kumar Versus Mrs.Shanti Devi and others DATE OF ORDER --- April 28,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.D.G.Chaturvedi, for the petitioner Mr.Sourabh Purohit, for the respondent No.3 BY THE COURT (1) By this writ petition, the petitioner, who at the time of accident was the owner of the offending vehicle, has challenged the orders dated 16.5.1997 (Anx.2) and 2.6.2000 (Anx.4) passed by the Motor Accident Claims Tribunal (Addl.Distt. & Sessions Judge), Bayana (for short `the Tribunal'), and has further prayed that the application dated 30.1.1999 (Anx.3) filed by the petitioner before the Tribunal may be allowed and the respondent No.3 – The New India Assurance Company Ltd. (for short `the Insurance Company') may be held liable to pay compensation pursuant to the insurance policy (Anx.1).(2) (2) Briefly stated, the facts giving rise to this writ petition are that with regard to an accident which took place on 20.2.1995, the respondent No.1 Smt.Shanti Devi filed a claim petition u/s 140 and 166 of the Motor Vehicles Act, for compensation amounting to Rs.8,45,362/-, for the injuries suffered by her in a road accident. It was stated in the claim petition that while she was returning to her Village Andhiyari from Uchhain, at Andhiyari turn, when she was at the left side of the road, Bus No. RNE-5890 came from behind and struck against her on account of which she suffered injuries. The respondent 2 No.1 was taken to the hospital where her right leg was amputated. She further stated in the claim petition that the accident took place on account of rash and negligent driving by the driver of the Bus. The Bus was insured with the respondent No.3 Insurance Company. (3) The Cover Note and the Schedule appended to the Insurance Policy No.31/19595 (Anx.1) were produced before the Tribunal and in the Schedule, the effective date of commencement of the insurance for the purpose of Act was mentioned as from `O' o'clock on 20.2.1995 till mid night of 19.2.1996. (4) The respondent No.3 Insurance Company after service of notice, appeared before the Tribunal and submitted an application that at the time of accident the offending vehicle (Bus) was not insured with it and that the accident occurred on 20.2.1995 at 5.30 p.m. whereas the insurance policy issued in favour of Vishnu Katara was effective from 20.2.1995 at 6.10 p.m. (5) The claimant respondent No.1 submitted reply to the aforesaid application of the respondent No.3 stating therein that the policy was issued in the name of Neeraj Kumar (the petitioner herein) and not in the name of Vishnu Katara and that the insurance was effective between the mid night of 19.2.1995 and 20.2.1995 and not from 6.10 p.m. on 20.2.1995. (6) The Tribunal vide its order dated 16.5.1997 (Anx.2) allowed the aforesaid application filed by the Insurance Company and deleted its name from the array of parties on the ground that the accident took place at 5.30 p.m. on 20.2.1995 whereas the cover note was issued at 6.10 p.m. on 20.2.1995. (7) Thereafter, on 30.1.1999, the petitioner submitted an application before the Tribunal stating that the Insurance Company was made party in the claim petition but its name was deleted on the application of the Insurance Company concealing material facts and it was prayed that the Insurance Company be made party to the claim petition and the compensation amount be ordered to be 3 paid by the Insurance Company. The Tribunal vide order dated 2.6.2000 dismissed the aforesaid application of the petitioner. (8) No reply to the application dated 30.1.1999 was filed by the Insurance Company. However, a perusal of the order dated 16.5.1997 (Anx.2) would reveal that the time of accident is mentioned as 5.30 p.m. on 20.2.1995 whereas in the insurance Cover Note No.91983, which has been filed today before this Court by the respondent Insurance Company, only it has been mentioned that the aforesaid insurance cover note was issued on 20.2.1995 at 6.10 p.m. but no specific time of commencement of the insurance has been mentioned. (9) There is no dispute that the accident took place at 5.30 p.m. on 20.2.1995 and the cover note was issued at 6.10 p.m. on 20.2.1995. The only controversy raised before this Court is that the Tribunal has referred only the cover note and ignored the date and time of the effectiveness of policy i.e. midnight of 20.2.1995 and expiry date midnight of 19.2.1996 mentioned in the Schedule of the insurance policy which is also one of the relevant factors for deciding the application filed by the parties. (10) Submission of counsel for the petitioner is that the date and time for the purpose of effectiveness of the policy as mentioned in the Schedule is mid night of 20.2.1995 till mid night of 19.2.1996, therefore, name of the insurance company has wrongly been deleted from the array of respondents. In support of his aforesaid submissions, counsel for the petitioner relied on the judgment in National Insurance Co. Ltd. V. Sobina Iakai (Smt.) and others (2007) 7 SCC 786. (11) Submission of counsel for the respondent Insurance Co. is that in the Cover Note No.91983, there is no such mention of commencement of the insurance from the mid-night of 20.2.1995. However, the expiry date has been mentioned as 19.2.1996, therefore, the date and time of the issuance of the 4 cover note i.e. 20.2.1995 at 6.10 p.m. is relevant. In support of his aforesaid submissions, counsel for the respondent placed reliance on the judgment of the Supreme Court in National Insurance Co.Ltd. V. Chinto Devi (Smt.) and others (2000) 7 SCC 50. (12) I have gone through record of the writ petition and further considered the rival submission of counsel for the parties. (13) Before proceeding further, I would like to quote the relevant paras of the judgments cited by counsel for the parties. The same are as under: National Insurance Co. Ltd. V. Sobina Iakai (Smt.) and others (2007) 7 SCC 786 Paras 17, 18 and 19 “17.In New India Insurance Co. V.Bhagwati Devi 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 becomes effective from that point of time. This Court in New India Assurance Co. Ltd. V. Sita Bai and National Insurance Co. Ltd. V. Chinto Devi has taken the same view. 18. In J.Kalaivani V.K.Sivashankar 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. 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. “ (emphasis supplied) National Insurance Co.Ltd. V. Chinto Devi (Smt.) and others (2000) 7 SCC 50 Paras 2,3 and 4 “2. Learned Senior Counsel appearing for the Insurance Company submits that since after the decision in New India Assurance Co. Ltd. Ram Dayal where this Court held, when the policy is of any date, it would cover the liability of the insurer from the previous midnight preceding the same date hence even where accident, in point of time is earlier than the time when the insurance policy was issued, the insurance company would be liable. A change in this principle is brought through decision of this Court which holds, if there is any special contract mentioned in the policy, it would be operative in terms of that contract hence where time is mentioned when it was issued then the liability would cover only from the time it was issued. Reference is made in National Insurance Co. Ltd. V. Jikubhai Nathuji Dabhi. This was a case where the policy was taken at 4.00 p.m. while the accident took place at 11.00 a.m. 5 This Court held in view of the special contract mentioned in the policy viz., the time of its issue, it would be operative from that time and not from the previous midnight. This decision has taken note of the aforesaid Ram Dayal case. A similar principle is also decided in New India Assurance Co. V. Bhagwati Devi. (emphasis supplied) 3. Relying on the said two decisions submission is, on th facts of this case the policy would only be effective from 4.45 p.m. of 23.2.1987 and since the accident took place at 11.30 a.m. the appellant would not be liable to pay to the insured. 4. However, there is dispute of time as to when this insurance policy was issued. According to the insured the policy was taken out at 10.00 a.m. and not 4.45 p.m. Reliance is placed on his deposition and that insurance policy does not refer to any time though the date is there. Further submission is that no cover note was issued to the insured. Ons the other hand submission on behalf of the appellant is that the cover note clearly indicates date and time of the insurance policy and thus non-mentioning of time in the insurance policy would be of no consequence as it can only follow the cover note. Further the insurance policy refers to the number of cover note correlating to the same number as that referred in the cover note. Therefore submission is that the time recorded in the cover note is correct. The insured seriously disputes the time of insurance of the insurance policy. “ (emphasis supplied) (14) In view of the judgment of the Supreme Court in National Insurance Co. Ltd. V. Chinto Devi (Smt.) and others (supra), specific contract was entered into at 6.10 p.m. on 20.2.1995 for insurance coverage of the vehicle in question. But in the cover note, no specific time of commencement of the insurance coverage was mentioned. However, in the Schedule appended to the insurance policy, the effective date has been specifically mentioned as midnight of 20.2.1995 and the expiry date mentioned is midnight of 19.2.1996. Therefore, it was necessary for the Tribunal to consider the aforesaid controversy of cover note issued at 6.10 p.m. on 20.2.1995 without mentioning any time of its effectiveness and further, mentioning of the time of effectiveness of the insurance in the Schedule appended to the policy. (15) The Tribunal has committed an error of law in not considering the contradiction in the cover note and the Schedule, as stated above. Since this Court is exercising power under Article 227 of the Constituion of India, I deem it proper to remand the matter to the Tribunal. 6 (16) Accordingly, the writ petition is allowed, the orders dated 16.5.1997 (Anx.2) and 2.6.2000 (Anx.4) passed by the Tribunal are quashed and set aside and the matter is remanded back to the Tribunal. The Tribunal is directed to decide the application filed by the respondent Insurance Company for deletion of its name from the array of respondents, within a period of three months, from the date of receipt of certified copy of this judgment, in accordance with law. (17) In view of the aforesaid order, there is no need to adjudicate on the validity of the order dated 2.6.2000 (Anx.4) whereby the application filed by the petitioner for impleading the Insurance Company as party, was rejected by the Tribunal. (Prem Shanker Asopa) J. गोpa ल