IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 MACA.No. 1783 of 2008() ----------------------- OPMV.983/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/3RD RESPONDENT:- ---------------------------------------------------- UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, NAGARCOIL. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S):PETITIONER & L.R.s & RESPONDENTS 2 TO 3 & L.Rs --------------------------------------------------------------------------------------------------------- 1. VIJAYAKUMAR, THOPPIL VILAKUM VEEDU, ALINAYARA,THUNDATHIL P.O., THIRUVANANTHPURAM (DIED). 2. MINI MOLE, W/O. VIJAYAKUMAR DO..... 3. ANIKA, D/O. VIJAYAKUMAR DO..... 4. RADHAMMA, M/O. VIJAYAKUMAR, DO..... 5. A.JASMIN KAJA, W/O KHAJA KHAN, T.C. 20/1086 (1),KUNCHALLUMMOODU, KARAMANA, THIRUVANANTHAPURAM. 6. AMBUJAKSHANAN,VATTAKUZHY, PLAVILA PUTHEN VEEDU, KARODE, VILAPPIL, THIRUVANANTHAPURAM (DIED). 7. C.SULOCHANA,W/O AMBUJAKSHANAN, PANCHIKODE,KANNERU PUTHEN VEEDU, ATHIYANNOOR, ARALUMMOODU P.O., THIRUVANANTHAPURAM. 8. BIJU, S/O AMBUJAKSHANAN DO..... ADV. SRI.SABU S.KALLARAMOOLA FOR R7 & R8 SMT.K.S.SUJA FOR R7 & R8 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2008 ALONG WITH MACA.NO.1784OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MACA Nos.1783 & 1784 OF 2008 ===================== Dated this the 3rd day of November 2008 JUDGMENT These appeals are preferred against the common award in O.P.Nos.983 & 984 of 1995 of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The United India Insurance Company, which is the 3rd respondent in both the claim applications is the appellant before this Court. This matter has a chequered career and on an earlier occasion the matter came up before this Court as MFA Nos.1130 & 1131 of 2001. The contention raised is that Ext.P1 policy was effective from 11.4.1994 to 10.4.1995 and therefore by virtue of the fact that the accident had taken place on 9.4.1994, the insurance company is not liable to indemnify. After remand, the matter was considered by the Tribunal again and the bare minimum facts which will have the telling effect on the case are as follows: It is admitted by the Asst.Manager of the Company as RW1 that the company had issued a cover note on 9.4.1994 relating to the vehicle. It is also deposed by him that the policy has been issued with the period commencing from 11.4.1994 till 10.4.1995. Ext.B2 which is the copy of the MACAs 1783 & 1784/2008 -:2:- cover note issued by the insurance company would show that it is issued on 9.4.1994 at 12.15 a.m. But the date of effect of commencement of the policy is shown as 11.4.1994 to 10.4.1995. The accident in this case had taken place at 7.00p.m. on 9.4.1994. So the following facts are : (1)a cover note on receipt of the premium was issued at 12.15 p.m. on 9.4.1994.(2) The accident took place at 7.00 p.m. on 9.4.1994 but the policy would show that it is intended to be commenced only from 11.4.1994 till 10.4.1995. Learned counsel for the insurance company contends before me that since the date of commencement of policy is 11.4.1994 and the accident had taken place on 9.4.1994 by virtue of the contract of insurance the liability of the insurance company would commence only from 11.4.1994 and not earlier. In support of the said argument, learned counsel had relied on a decision of the Karnataka High Court reported in Branch Manager, National Insurance Co.Ltd. v. Hamza and another(2005(1) ACJ 325), wherein the facts would reveal that the owner of the auto rickshaw paid premium on 4.8.1997 to obtain a policy with effect from 5.8.1997 and the accident took place on 4.8.1997 and the said Court took the view that since the policy commences only from 5.8.1997 the insurance company cannot be made liable to pay. There was also a reference to the decision of the Apex Court in J.Kalaivani and others v. K.Sivashankar and another(2002 ACJ 613). It was a case MACAs 1783 & 1784/2008 -:3:- where the Supreme Court had considered regarding the commencement of the policy. There was an earlier view that suppose a policy is taken without any specification of time it will relate back to the point from the previous midnight. In the decision referred to above, the Apex Court held that when the policy is issued with a stipulation of the time of commencement of the policy the said principle cannot be applied and it will have effect only from the said time which is mentioned in the policy. 2. So far as this case is concerned, there is difference in the factual matters. Here, the insurance company at least 7 hours before the accident accepts the premium from the owner and issued a cover note. When it is the situation the matter was considered by a learned Judge of the Madras High Court in the decision reported in Oriental Insurance Co.Ltd. v. Vedathal (2001 ACJ 2022). It was a case where a policy was obtained at 10.30 a.m. on the date of accident,i.e. 20.5.1991 and the accident occurred at 2.00 p.m. The insurance company contended that the date of commencement mentioned on the policy is from midnight of 21.5.1991 and therefore it is not liable. The Court held that the premium was paid and accepted by the insurance company on 20.5.1991 and therefore it is liable to pay the compensation. The learned Judge specifically referred to Section 64 VB of the Insurance Act 1935 and to the relevant provision, viz., sub MACAs 1783 & 1784/2008 -:4:- section (2) of the said Section which reads as follows: For the purpose of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not later than the date on which the premium has been paid in cash or by cheque to the insurer. There is an Explanation to the said Section which reads: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. So a reading of this Section, which is equally applicable to the payment of premium in the insurance policy with respect to the motor vehicles is also concerned, makes it clear that the liability of the insurance company is to commence from the receipt of the premium. This aspect of the matter has not been considered by the learned Judge of the Karnataka HighCourt, who had rendered the decision in 2005(1) ACJ 325). According to me, the decision rendered by the Madras High Court which has considered about the impact of these things regarding the receipt of payment of premium is more appropriate and applicable to the facts of the present case. Otherwise a situation will arise that the insurance company after the receipt of the premium may issue a policy from a later date and get itself exonerated from the liability for which the poor owner has no role to play. MACAs 1783 & 1784/2008 -:5:- Therefore I do not find any mistake committed by the Tribunal in directing the insurance company to indemnify the owner and pay the amount. Therefore the appeals lack merit and they are dismissed. M.N.KRISHNAN, JUDGE Cdp/-