FAO.No.4328 of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO.No.4328 of 2009 Date of decision: 16.8.2011 Oriental Insurance Company ….Appellant Vs. Jaspal Kaur and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ashwani Talwar, Advocate for the appellant. None for respondent Nos.1 to 3. Mr. Ankur Mittal, Advocate for respondent Nos.4 & 5 (Driver & Owner of the offending vehicle). Jaswant Singh, J Appellant-Insurance Company has filed the instant appeal assailing the impugned award dated 17.4.2009 passed by the learned Motor Accident Claims Tribunal, Hoshiarpur (for short “the Tribunal”) whereby the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”) by the claimants/respondent Nos.1 to 3 herein (widow and minor children of the deceased Manjit Singh) was allowed and a sum of Rs.3,44,200/- (Three lacs forty four thousand and two hundred only) was awarded as compensation along with interest to be paid by the appellant- Insurance Company. Briefly stated the facts are that on 11.10.2003, Manjit Singh (since deceased) along with Charanjit Singh was coming to his house on his scooter bearing No.PB07-1-7148. Said Manjit Singh was driving the scooter whereas Charanjit Singh was the pillion rider. They were followed by one Mohinder Singh, who was going on his scooter bearing No.PB-10- D-5711. When all of them reached in fron of K.W Cycle Industry situated on link road Industrial Area, Ludhiana a car bearing registration No.PB-10- FAO.No.4328 of 2009 #2# AN-7900 (hereinafter to be referred as “offending vehicle”) being driven by respondent No.4 herein (driver) in a rash and negligent manner came from behind and struck against the scooter driven by deceased Manjit Singh as a result of which both Manjit Singh (since deceased) and Charanjit Singh fell down and sustained injuries. Manjit Singh was removed to Christian Medical College and Hospital, Ludhiana where he succumbed to the injuries. Claimants/respondent Nos.1 to 3 herein filed a claim petition claiming compensation on account of death of Manjit Singh. Learned Tribunal after hearing learned counsel for the parties and perusing the material placed on record allowed the claim petition while awarding a sum of Rs.3,44,200/- to be paid by the appellant-Insurance Company, hence the present petition. Learned counsel for the appellant argues that the learned Tribunal while awarding a huge compensation fell into an error and that the application filed under Section 170 of the Act ought to have been allowed since the owner of the offending vehicle had failed to contest the petition. It was argued that at the time of filling up the proposal form on 9.10.2003 itself, it was mentioned in the proposal form that the period of insurance shall be from 13.10.2003 to 12.10.2004 and therefore, there was no insurance policy issued by the appellant in favour of the owner of the offending vehicle on the day of the accident i.e 11.10.2003, therefore, the appellant-Insurance Company cannot be liable to pay the compensation. In support of his contentions, learned counsel cites New India Assurance Co v. Bhagwati Devi 1999(2) PLR 294, J. Kalaivani v. K. Sivashankar 2002 (2) RCR (Civil) 805 and National Insurance Co. Ltd v. Smt Sobina Iakai FAO.No.4328 of 2009 #3# & Ors 2007(3) RCR (Civil) 582. On the other hand, learned counsel for the respondents supported the impugned order. It was argued that the cover note (Ex.RX) for the Insurance Policy (Ex.RY) was issued on 9.10.2003 after receiving an amount of Rs.8600/- in cash by the Insurer's Agent as premium for the Insurance of the offending vehicle and, therefore, in view of the provisions of Section 64 VB of the Insurance Act, 1938 governing such transactions, the risk by the Insurance Company cannot be avoided solely on the basis that the cover note/Insurance Policy indicated the policy to commence w.e.f 13.10.2003, moreso when it is not the case of the Insurance Company that the premium had not been paid on 9.10.2003. After hearing learned counsel for the parties and going through the paper book, this court is persuaded to accept the pleas raised on behalf of the respondent-driver and owner of the offending vehicle and finds no merit in the present appeal and the same deserves dismissal. It has come on record that there was no previous enmity of the deceased or any of the claimants with the driver or owner of the offending vehicle. In the present case, PW4-Mohinder Singh has categorically deposed on oath as to how, when and under what circumstances, the accident was caused . The driving licence of the driver -respondent No.4 has also been proved to be genuine one. In order to prove her case, claimant-Jaspal Kaur deposed that her husband was earning Rs.10,000/- per month and was running Welding Works at Partap Chowk, Ludhiana. She stated that her husband had filed return for his income for the assessment year 2003-2004 besides alleging that a sum of Rs.25,000/- was spent on the last rites of Manjit singh and due FAO.No.4328 of 2009 #4# to his untimely death, they suffered mental as well as financial loss, which cannot be compensated. As regards the main argument of learned counsel for the appellant that the offending vehicle was not insured at the time of accident because the cover note was issued for the period from 13.10.2003 to 12.10.2004, the learned Tribunal, in my considered opinion, has rightly observed that no doubt in the cover note the effective date and time of commencement of the insurance for the purpose of this act was mentioned as 13.10.2003 but simply on this ground, the Insurance Company cannot wriggle out from its liability in view of the provisions of Section 64VB of the Insurance Act, 1938 (for short “the Act”) especially when Rs.8600/- being premium for the insurance of the offending vehicle was admittedly paid on 9.10.2003 and the cover note was also issued on the same day i.e 9.10.2003. It is apparent from the bare reading of Section 64 VB of the Act that the scheme of insurances envisages that the risk of the insurer i.e the Insurance Company commences from the date, the premium can be ascertained to be paid. The reliance by the learned Tribunal on decision of the Madhya Pradesh High Court in the case reported as Oriental Insurance Co. Ltd v. Sheela Bai & Ors III (2007) ACC 672 in support of such findings, in my opinion, is most appropriate. In a case of similar nature, Hon'ble Supreme Court in case reported as Balbir Kaur & Ors v. New India Assurance Company Ltd & Ors JT 2009 (5) SC 480, keeping in view the provisions of Section 64 VB of the Act, has in para 13 held that the Insurance Policy, in law, can be issued from a future date, however, such a Policy must be with the consent of the Holder of the Policy and not made effective unilaterally without the consent by the Insurer/Insurance FAO.No.4328 of 2009 #5# Company. Still further, in my considered view, such beneficient provisions have to be read down to advance the cause of justice and fair play rather than defeat the whole object of beneficial legislation/provisions. Further, in my opinion, learned Tribunal while dismissing the application of the appellant-Insurance has rightly observed that the claim petition was being hotly resisted by respondents i.e driver and owner through the counsel so the mere assertion that there is collusion between the claimants and respondents is not sufficient to grant permission under Section 170 of the Act in this regard. The judgments cited by learned counsel for the appellants are not applicable to the facts of the present case as undisputedly in the present case, Cover Note No.871657 was issued by the Insurance Company/appellant on 9.10.2003 and a total premium of Rs.8600/- was charged on that very day and the accident had taken place on 11.10.2003 whereas in the cited judgments, the factual position was entirely different because of the following reasons: In Bhagwati Devi's case (supra), appellant/Insurance Company sold a Policy at 4.00 PM on 17.2.1989 and the accident with the vehicle had taken place at about 9.00 AM on that very day i.e prior in time of purchasing the Policy and the claim of the claimants was allowed on the basis of legal fiction that a Policy would be effective from the previous midnight and in those circumstances, the appeal of the Insurance Company was allowed. In Kalaivani's case (supra), the vehicle involved in the accident was insured by the Insurance Company and the Policy was to expire by the midnight of 7.2.1996 and the accident took place at 4.30 AM FAO.No.4328 of 2009 #6# on 8.2.1996 i.e four and half hours after the expiry of the Policy. Thereafter, on the succeeding day, the owner of the vehicle purchased another policy in respect of the same vehicle in which commencement of the Policy was mentioned as 10 AM on 8.2.1996 and the question was whether the Policy issued on 8.2.1996 can be regarded as renewal of the earlier Policy, which expired on 7.2.1996, and in those circumstances, it was held that the Policy had expired on 7.2.1996 and the new Policy would be applicable w.e.f 8.2.1996 at 10 AM and the accident had taken place during the intervening period and as such the Insurance Company was held not liable. In Smt Sobina Iakai's case (supra), the Insurance Policy of the bus bearing Registration No.ML-04 2741 had expired on 29.6.1994 and the accident had taken place at 9.15 AM on 20.7.1994. Thereafter, the insurance was renewed on 20.7.1994 at 2.00 PM for the period from 20.7.1994 to 19.7.1995. In these circumstances, the Hon'ble Supreme Court held that admittedly at the time of accident i.e at 9.15 AM on 20.7.1994, the respondent did not have the Insurance Cover, therefore, none of the judgments is helpful to the appellant. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned award dated 17.4.2009 passed by the learned Motor Accident Claims Tribunal, Hoshiarpur passed by the learned courts below warranting interference under Article 227 of the Constitution. Dismissed. August 16, 2011 ( JASWANT SINGH ) manoj JUDGE