HI SI APPELLANT N Versus \ \_ RESPONDENTS Mst. others. ORDER Post on Jul 2010 and r r ‘ Sdl— R.L. Jhanwal‘ Judge W10 J GH COURT OF CHHATTISGARH BILASPUR \\ NGLE BENCH: ’ \ HONBLE SHRI R. Sumitra Bai g3i \:<\?\ HIGH CRT OU OF CHHATTISGARH : BILASPUR APPELLANT NON-APPLICANT NO. 2 SINGLE BENCH: HON’BLE SHRI R.L.JHANWAR J. M.A. N0. 462 of 2004 Shravan Kumar Agrawal, aged about 50 years; S/o Shri Shankarlal Agrawal, Owner, Truck No. M.P. 26 8-8762, Resident of Naila, Tahsil Janjgir— Champa, Janjgir. VERSUS . Mst. Sumitra Bai, Widow of Shiv Prasad Sidar, aged 20 years, resident of Sukhada, Tah. Dabhara, Dist. Janjgir- Champa, presently residing SanNani, Tah. & District Raigarh: Gurucharan Singh, S/o Shri Prakash Singh Saini, Sardar, Driver of Truck No. MP 26 B-8762, aged 35 years, resident of Chandiapara, Ward No. 14, Sriram Yadav House (near), Janjgir, District Janjgir—Champa-(C.G.) 3. Manager, United India insurance Company, transport Nagar, Korb‘a, C/o Manager, Raigarh, Branch Office, Satigudi Chowk, Raigarh. MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT RESPONDENTS Apa perance: Shri Ratan Pusty, counsel forthe appellant. Shri Vineet Kumar Pandey, counsel for reSpondent No 3 Shri H.B.Agrawal Sr. Advocate with Shri Pankaj Agrawal, counsel for respondent N053, $ ORDER (Passed on “1072010) This is an appeal by the owner of the Truck No. MP 26 B- 8762 (henceforth ‘the truck’) flled against the award dated 22.12.2003 passed by the 2nd Additional Motor Accidents Claims Tribunai, Raigarh (in short ‘the Tribunal) in clairh case No. 16/2002 whereby the Tribunal has fastened the liability to pay compensation of Rs.2,11,000/- with interest at 9% per annum, awarded by it, to the claimants. x-a A 1 2 if facts of te case are that the deceased Shiv rasad $m gn aged 25 years w on Sakti - Kharsia road, the truck being driven by respondent No. in a rash an negligent manne dashed s Shv S h rasad Sdr h .. . Bre h P Si as Sty againt i Prasad anwara, due to whic, Shiv P ia as died on the spot. F... was lodged in P.S. Kharsia by Mangaram, Kotwar. Ater necessary investigation, charge sheet has been filed. 3. Lakhan Sai Sanwara, Bahter Bai, rets of te deeased and M. Sumitr Bai, wife of the deceased have flied the claim petition. According to petition, te deceased Shiv Prasad was the ony son o them and studied upto 1m class and was doing aicultural duties and also used to give a m of Rs.5000/ — to his paren fr their expenses. It is also pleaded at after his death, they have become shelter—less, and theefore, claimed Rs.350,000/— as compensation. 4. Written statements have een filed before the ibuna by the rivr — Gurucharan Singh, owner - Shravan Kumar Agrawal p U h (apellant herein) and nited India Insurance Company. Te driver/resondet No.2 denied all the averments pleaded in the claim petition. He Specifically denid that he was not driving the trck rashly and negligently at the tirne of accident and the said truck s ot ivolved in the aceident’. He was fally implicated. The appellant / wner of the truck also denied all the averments pleaded i the laim petition and scifically stated that his vehicle was insued with h Unit India Insurance Company and driver had valid licence, therefore, he is not responsible to pay compensation. The insurance company is responsible to pay compensation. The insurance company also denied. It specifically denied in its paragraph 24 that the offending truck is involved in the accident and the said truck was not insured with the insurance company. According to insurance company, the accident took place on 9.6.2000 at 06.00 a.m. Whereas the insurance policy became effective from 9.6.2000 at 10.00 a.m. Therefore, at the time ofaccident, the offending vehicle was not 2 d r w I IR f in pan h c st a h l t 2 gr su ts o th r ,2 b Trl de pn e u wa n n ‘ se o n c pe r te ed Balbir Kaur & Anr. V. New India Assurance Co. Ltd. 8a Ors. 2009 AIR SCW 4583, Oriental Insurance Co. Ltd. v. Bhal Nalkantha Khadi Gramodyog Mandal and others, 2004 ACJ 1209, Oriental Insurance Co. Ltd. v. Rajesh and others, 2009 ACJ 1254 and Oriental Insurance Co. Ltd. v. Sheela Bai and others, 2007 ACJ 798. 8. On the other hand, Shri H.B.Agrawa1, Senior Advocate with Shri Pankaj Agrawal, learned counsel for the insurance company argued that condition of policy was read over to the appellant by Ravindra 'Kurnar Jain, N.A.W.1, Development Officer of the insurance company, who had given the statement that the fact regarding commencement of the date and time of the risk was intimated to the appellant and the appellant also accepted the same. According to learned counsel, the policy comes under the purview of contract. The policy of insurance has been issued by the insurance company on 9.6.2000 and in that policy time was mentioned as 10.00 a.m., therefore, commencement of policy starts from 10.00 am. on 9.6.2000 despite cover note was issued on 8.6.2000. He also argued that cover note issued on 8.6.2000 is not insurance policy, therefore, on the date of accident and time of accident the offending truck was not insured. Taking into consideration all the above points, the Tribunal has rightly exonerated the insurance company to pay compensation. The order of the Tribunal is proper and according to law and also needs no interference. 9. I have heard learned counsel for the parties at length, perused the impugned order and record of the Tribunal. 10. The learned Claims Tribunal found that the, driver of the offending truck was negligent in driving the said truck at the time of accident, as a result thereof, dashed the deceased and due to that the deceased died on spot. Relying on the evidence adduced by the claimant Lakhan Sai A.W’1 and Tikaram A.W.2, it is clear that the learned Tribunal found that the offending truck was driven by the driver in a very rash and negligent manner and due gé- ~ to that the accident took place. In this case, it has come in evidence that the driver of the offending truck was negligent. Thus, the flnding of the learned Tribunal on this point is purely based on the legal and clinching evidence and thus confirmed. 11. So far as the main contention about the date of commencement of policy is concerned, EX.D.1 filed by N.A.W.1 is perused. It is clear from the EX.D.1 that the policy was issued on 9.6.2001 at 10.00 hours expiring till 8.6.2001. The main contention of the learned Senior Advocate that the policy starts from 9.6.2000 at 10.00 a.m. and not from the date of cover note i.e. 8.6.2000 and also the accident took place on 9.6.2000 at 6.00 a.m., therefore, at the time of accident the offending truck was not i insured with the insurance company is unacceptable because in that policy EX.D.1 it is also mentioned that this policy was issued in lieu of cover note No. 151371 dated 8.6.2000 and agent code is also mentioned meaning thereby that the policy of insurance already came into being on 8.6.2000, on which date, the premium was also paid. A bare reading of Section 145 clause (b) of the Act also clearly indicates that “certificate of insurance” means a certificate issued by an authorized insurer in pursuance of sub— section (3) of section 147 and includes a cover note complying With such requirements as may be prescribed, therefore, the policy of insurance already came into effect on 8.6.2000, on which date, premium was also paid and cover note was also issued. The insurance company has no right to deny the same. Moreover, learned counsel for the insurance company fairly admitted that the insurance company has received premium on 8.6.2000 and on the . same date cover note was also issued. l2. Ravindra Kumar Jain N.A.W.l, Development Officer, in his evidence before Court in paragraph l admitted that he had informed the appellant that risk of the policy of insurance will be effective frbm 9.6.2000 to 8.6.2001 and not from the date of issuing cover note on 8.6.2000, on which date, premium was also paid. It is the duty of the insurance company to produce such documentary evidence like proposal form, receipt of premium and ’ O cover note which shows that when the contract was executed actually and also consent of the policy holder but in the present case, the insurance company has not produced any such document. Thus, the evidence of Ravindra Kumar Jain on this point cannot be believed. The document which is on record is only insurance policy EX.D.1 by which it is clear that cover note was issued on 8.6.2000 and number of cover note was 151371 which shows that the premium was paid on 8.6.2000 and after that cover note was issued. As held in the case of Oriental Insurance Co. Ltd. v. Rajesh and others (supra) wherein it has been held by the pex Court that the insurance company failed to prove the proposal form and record of premium receipt of the day to show actual time of receiving premium and whether the vehicle was insured before 1.30 p.m. and in the absence of such proof the insurance company was held to be liable, the insurance company in the case at hand also utterly failed to bring on record the documentary evidence like proposal form, receipt of premium and cover note. 18. A bare reading of Section 145 clause ) of the Act clearly indicates that the policy issued under Section 147 (3) of the Act includes cover note also. Thus, it is clear that the cover note was adequate documentary proof that the offending vehicle was duly insured with the insurance company befOre the date of accident and for that the insurance company is liable to pay compensation on the basis of cover note. Once cover note was issued then the insurance company cannot be escaped from its liability to pay compensation to the claimants. It is also necessary to examine section 64-VB of the Insurance Act, 1938 which reads as under: “64—VB (2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Explanation.-—— Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the A (b date on which the money order is booked or' the cheque is posted, as the case may be.” A bare reading of the above provision makes it clear that insurance policy has come into effect from the time of handing over ’ of the proposal form and premium to the agent of the insurance company. 'Io t l4. Thus, it is clear from the above that the premium was paid on 8.6.2000, on which date, cover note was also issued and on the basis of cover note only the insurance company is required to pay the compensation to the claimants. 15. The learned Tribunal ignored the most material aspect as discussed in preceding paragraphs and erred in fastening the liability to pay compensation on the appellant / owner. I am of the opinion that the learned Tribunal ought to have fastened the liability to pay compensation on the insurance company in lieu of what has been stated in preceding paragraphs. 16. In view of the foregoing discussion, the impugned award in so far as fastening the liability to pay compensation on the appellant / owner is set aside and instead it is modified that the compensation awarded by the Tribunal shall be payable by the insurance company to the claimants in View of what has been stated in the above paragraphs. l7. Appeal is allowed to the extent indicated above. No order as to costs. R.L. Jhanwar Judge Sdl- \