1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 349 OF 1994 M/s. National Insurance Co. Ltd. having its registered office at 3, Middleton Street, Calcutta, 700 071 and Divisional Office at Hazari Chambers, Station Road, Aurangabad and Branch office at Gurudwara Chowk, Naginabhat, Nanded - through its Divisional Manager and Duly constituted attorney Shri. Vasudeo s/o. Shripad Bagul ....Appellant. Versus 1. Kasabai w/o. Honaji Kamble, 2. Madhav s/o. Honaji Kamble, 3. Vandana d/o. Honaji Kamble, U/g of No. 1 above -Natural mother, 4. Raju s/o. Honaji Kamble, U/g of No. 1 above -Natural mother, 5. Vijay s/o. Honaji Kamble, U/g of No. 1 above - Natural mother, No. 1 to 5 are R/o. Village Kapsi, Tq. Kandhar, Dist. Nanded. 6. Kailash s/o. Kondiba Saga R/o. Ashok Nagar, Nanded. (Appeal is dismissed against R.No. 6) 7. Govindsingh Ranbirsingh Thakur, Ashoknagar, Nanded. ....Respondents. Shri. V.N. Upadhye, Advocate for the appellant. Shri. A.R. Joshi, Advocate for the respondent Nos. 1 to 5. CORAM : R.K. DESHPANDE, JJ. [Date of reserving the Judgment on 2nd of September 2009 Date of pronouncement of Judgment 8th of September 2009] 2 ORAL JUDGMENT : 1. This appeal preferred by the Insurance Company, challenges the judgment and award dated 5.3.1994, passed by the Motor Accident Claims Tribunal, Nanded in MACP No. 38/1988. By this award the appellant Insurance Company and the respondent NO. 7, the owner of the vehicle, are held liable to pay jointly and severally Rs. 84,000/- inclusive of no fault liability amount to the claimants, who are respondent Nos. 1 to 5 in the present case along with interest at the rate of 12% p.a. from the date of application till its realization. The respondent Nos. 1 to 5 are the original claimants before the Motor Accident Claims Tribunal, who filed MACP 38/1988. 2. The respondent Nos. 1 to 5 ( hereinafter referred to as "the claimants") alleged in the claim petition that the deceased Honaji, who was residing with the applicants at village Kapsi, Tq. Khandar, Dist. Nanded, on 19.2.1988 was coming to Nanded from Kapsi at about 6 a.m. in a bullock cart and when it came near Kakhandi on Nanded-Deglur road, a truck bearing No. MHB/3148 came from the opposite direction and gave dash to the bullock cart. As a result, the deceased sustained injury and died on the spot. It was alleged that the truck was being driven in rash and negligent manner by the driver, which has resulted in the accident and ultimately causing death of the Honaji. The deceased was working as a labourer and the claimants, who are his dependents, filed the claim petition for compensation of Rs. 1,00,000/- on account of 3 the death of Honaji and Rs. 3,000/- for the death of one bullock. 3. It was alleged that the said truck was insured under the policy No. 6872/6300011/193 with the appellant Insurance Company. It was further alleged that the respondent No. 7 herein was the owner of the truck, who had employed the respondent No. 6 as the driver of the truck. It was further alleged that the owner of the truck was vicariously liable for the act of rash and negligent driving by the driver of the truck and the appellant Insurance Company, having issued the Insurance policy, has undertaken to indemnify the owner. The claim petition was filed on 13/15 of March 1988. On 17.2.1994 the Insurance Company along with two separate lists of documents, placed on record the original proposal given by the owner of the vehicle on 10.2.1988, carbon copy of cover note No. 6872/6300090, dated 10.2.1988. It is undisputed position that the original cover note and the original policy is not placed on record. 4. The appellant Insurance Company initially filed an application Exh. 24 on 30.11.1988 for deletion of its name from the claim proceeding on the ground that on the date of alleged accident, the vehicle i.e. truck bearing MHB/3148 was not insured with the appellant Insurance Company and hence, the question of compensation to be paid by the Insurance Company does not arise. This application remained pending. However, on 6.3.1992 the appellant Insurance Company filed its written statement. In para 3 of the written statement, the stand was taken as 4 under :- "That on the date and time of the accident the vehicle is not insured with the respondent No. 3. The respondent No. 1 fraudulently obtained cover note of the Insurance kept in dark regarding the alleged accident. Therefore, this respondent is not at all liable for any compensation." In the additional facts on second page in para (A), the appellant Insurance Company stated as under :- "A) That the respondent No. 2 has obtained this Insurance of the vehicle without giving information of the accident and he insured this vehicle in question after the accident. Respondent has not covered vehicle at the time of accident. Hence, this respondent is not liable for any compensation. 5. The claimants led oral evidence. The claimant No. 1 Kashabai w/o. Honaji examined herself as P.W. 1 and Kamaji Fakiraji, who was accompanying the deceased on the bullock cart, was examined as P.W. 2. The appellant Insurance Company examined D.W. 1 Kanchansing Karansing Parmar, the Development Officer, who issued cover note and received the proposal form and one Ramnarayan Bang as P.W. 2, the Branch Manager of National Insurance Company at Nanded. After all the witnesses were examined, the owner of the vehicle, who is respondent No. 7 herein, filed his written statement at Exh. 16 in which the stand was taken that at the relevant time, the truck was insured with defendant No. 3 and the papers and the amount of Rs.304/- was given to the agent 5 on 9.2.1988 itself and he promised to effect the insurance from 10.2.1988. 6. The dispute, which is relevant for the purpose of the present appeal, concerning the liability of the Insurance Company, as arose before the Trial Court, was whether the truck in question was insured with the appellant Insurance Company on the date and time of accident occurred at 6 O'Clock in the morning. The Insurance Company, by placing its reliance upon the original proposal and the carbon copy of the cover note which are at Exhs. 63 and 64, respectively along with the evidence of D.W. 1 and D.W. 2, the Development Officer and the Branch Manager of the Insurance Company, respectively, urged that the risk under the policy commenced from 14.30 hrs. of 10th of February 1988, whereas the claimants relying upon the Insurance Policy at Exh. 67 urged that the policy commenced from the zero hours on 10th of February 1988 and it was to expire on 9th of February 1989, both the days being inclusive as stated in the Insurance Policy. Thus, the controversy was that whether the Insurance Policy covers the risk of the deceased in the accident, which occurred on 10.2.1988 at 6 O'Clock in the morning. The tribunal, vide its impugned judgment, has recorded a finding that mentioning of time in the proposal and the cover note should not be treated as evidence that the Insurance Policy commenced at 4 p.m. It has further been held that the Insurance Policy is final contract, in which there is no mention about the time of the 6 commencement of the policy and hence, the Insurance Company was liable to indemnify the owner. 7. Shri. Upadhye, the learned counsel appearing for the appellant Insurance Company, relying upon the original proposal form, which is at Exh. 63 and the cover note at Exh. 64, urged that both these documents clearly indicate that the risk cover started at 4.30 hrs. on 10.2.1988. He has also relied upon the evidence of D.W. 1 and D.W. 2. The learned counsel urged that when these two documents clearly showed the time of issuance of policy and its commencement, then there is no question of the accident which occurred on 10.2.1982 at 6 O'Clock in the morning being covered by the Insurance Policy. In support of his contention, the learned counsel has placed reliance upon the following judgments of the Apex Court :- (a) (1998) 1 SCC 365, Oriental Insurance Company Vs. Sunita, (b) (1997) 1 SSC 66, National Insurance Company vs. Jijubai (c) (2000) 9 SCC 229, New India Assurance Company Vs. Rakesh (d) (1998) 6 SCC 565, New India Assrance Company Vs. Bhagwati, (e) (2007) 7 SCC 792, J. Kalaisavi Vs. K. Shivshankar. 8. The learned counsel for the respondents claimants has relied upon the Insurance Policy at Exh. 67, which prescribed the period of policy as from 10.2.1988 to 9.2.1988, with further addition that "both the days inclusive". He has also relied upon the evidence of D.W. 1 7 Kanchansing, the Development Officer, who stated that as per the proposal, the policy was in operation from 10.2.1988 to 9.2.1989. The learned counsel further stated that the proposal at Exh. 63 and the cover note at Exh. 64 are the documents which were in possession of the appellant Insurance Company and the endorsements of the timing mentioned in both these documents does not inspire confidence. He has urged that the Tribunal has rightly considered the aspect by relying upon the contents of policy at Exh. 67 to hold that there is no mention of time about the commencement of policy and in the absence of the same, the matter was governed by the judgment of the Apex Court in New India Insurance Company Vs. Ram Dayal, reported in (1990) 2 SCC 680. 9. The only question which falls for my consideration is whether the Insurance Policy at Exh. 67 covers the risk of the deceased which has arisen out of the accident, occurred on 10.2.1988 at 6 O'Clock in the morning. It is the matter of fact which is required to be considered or established on the basis of the material available on the record. 10. The first document relied upon by the Insurance Company is the proposal dated 10.2.1988 at Exh. 63 in original. Column No. 17 in this form deals with the period, for which the Insurance is required. The same is reproduced below to indicate the manner in which the entry in this column appears. 8 17 For what period is insurance required ? From 10.2.1988 To 9.2.1989 - 14.30 P.M. 11. The proposal Exh. 63 undisputedly pertains to vehicle in question i.e. MHB/3148 and the owner of the said vehicle is shown to be the respondent No. 7 Mr. Govindsing Ranwirsing. D.W. No. 1 Kanchansing, the Development Officer of the appellant Insurance Company, stated in his deposition that he got this proposal form filled in from the owner of the vehicle, who signed it in his presence. He stated in his cross examination that this proposal was submitted to the Insurance Company on 10.2.1988 and as per this proposal the policy was in operation from 10.2.1988 to 9.2.1989. He denies suggestion that the hand writing on the proposal at Exh. 63 was his own and the time in the proposal was inserted subsequently. The evidence of D.W. 1 significantly silent on the point of time when the proposal was submitted, although, according to the appellant Insurance Company, the entry in column No. 17 reproduced above shows the time as 14.30 p.m. Thus, what is being suggested by this evidence is that the owner himself has put the time as 14.30 p.m. in the proposal at Exh. 63 and that the proposal form was filled in completely by the owner of the vehicle, who signed it. 12. It is not the stand of the appellant Insurance Company in its written statement that the owner of the vehicle himself has put the time 14.30 p.m. against the entry in column No. 17, which is reproduced above. The stand of the appellant Insurance Company in para No. 3 and 9 para (A) of the written statement, reproduced in earlier paras, is that on the date and time of accident the vehicle was not insured with the appellant Insurance Company. It is further stand that the owner of the vehicle fraudulently obtained the cover note of the insurance and kept in dark regarding the alleged accident. It is further stand in the written statement that the owner insured the vehicle in question after the accident and vehicle was not covered by insurance at the time of accident. If this stand of the appellant Insurance Company is accepted to be true, then it is highly improbable for the owner of the vehicle to put the time as 14.30 p.m. in column No. 17 of the proposal. A person, who knows that the accident had occurred at 6 O'Clock on 10.2.1988 and wanted insurance cover for his vehicle, would never put the time in the proposal for taking out the Insurance Company with effect from the same day i.e. 10.2.1988 to deprive himself the benefit of the insurance cover. Although in the written statement the stand is taken that the Insurance of the vehicle was obtained without giving the information of the accident, this stand is not substantiated by the evidence of D.W. 1 Kanchansing, the Development Officer. D.W. 1, nowhere in his evidence, states that the proposal was submitted by the owner of the vehicle without disclosing him that the accident had occurred on 10.2.1988 at 6 O'Clock in the morning. Thus, there is total variance between the pleadings and the proof led by the appellant Insurance Company. The entry regarding time of "14.30 p.m." is not supported by the evidence of D.W. 1 Kanchansing. If this entry regarding time had been there on 10 10.2.1988, then the appellant Insurance Company would have been taken a specific stand in its written statement that the insurance cover was operative from 14.30 hrs. of 10.2.1988 and at the time of accident the risk was not covered by the policy. 13. Now coming to the document at Exh. 64 which is a cover note dated 10.2.1988, the D.W. 1 Kanchansing stated that it bears his signature and the same is at Exh. 64. The learned counsel for the appellant relies upon the entry "14.30" mentioned against the date i.e. 10.2.1988 in the cover note at Exh. 64 and urged that it was issued at 14.30. From perusal of Exh. 64, it does not appear that the entry "14.30" pertains to the timing of insurance of cover note. The evidence of D.W. 1 is also significantly silent about the time mentioned in the cover note. Thus, there is no evidence to show that the entry "14.30" mentioned in the cover note pertains to the time from which the policy operates. This cover note appears to have been issued on 10.2.1988 and the written statement is filed on 6.3.1992. If this argument of Shri. Upadhye, the learned counsel for the appellant that entry "14.30" in the cover note pertains to the time of issuance of cover note, then this fact would have been specifically mentioned in the written statement. It is not the stand in the written statement that the cover note was issued on 10.2.1988 at 14.30 hrs. Thus, there is total variance in between the stand taken by the appellant Insurance Company in the written statement, the documents produced on record and the oral evidence led on the points involved. It 11 is, therefore, unbelievable that the proposal at Exh. 63 and the cover note at Exh. 64 mentions the timing as 14.30 hrs. for the policy to become effective. 14. The Branch Manager of the appellant Insurance Company has proved the Insurance Policy which is at Exh. 67. He stated that the truck No. MHB/3148 is insured with the appellant Insurance Company and produced carbon copy of the Insurance Policy marked at Exh. 67. He stated that the original of the said policy was given to the owner and the contents of the Insurance Policy at Exh. 67 are correct. Undisputedly, the Insurance Policy at Exh. 67 specifies the period as 10.2.1988 to 9.2.1989 with further endorsement that "both days inclusive". The Insurance Policy is silent about the time from which the policy shall become operative. When this was brought to the notice of D.W. 2, the Branch Manager, he stated that there is no procedure of mentioning time of insurance in the policy and the time will be mentioned in the cover note. Thus, the policy at Exh. 67 which is duly proved by P.W. 2, the Branch Manager, establishes that the policy was for the period from 10.2.1988 to 9.2.1989, both days being inclusive. If this policy was operative from 14.30 hrs. of 10.2.1988 then the appellant would have taken specific stand to that effect in the written statement. 15. In view of the aforesaid position, the Insurance Company has failed to establish that the Insurance Policy was operative from 14.30 hrs. 12 from 10.2.1988. It has further failed to establish that the cover note at Exh. 64 made the policy operative from 14.30 hrs. on 10.2.1988. The stand of the appellant Insurance Company that the vehicle was not insured on the date and time when the accident in question occurred and that the owner of the vehicle obtained the cover note without giving information of the accident, is not substantiated by any evidence on record. The Tribunal, therefore, rightly relied upon the decision of the Apex Court reported in (1990) 2 SCC 680, New India Assurance Company Limited Vs. Ram Dayal and others in which it has been held that when a policy is taken on a particular date, its effectiveness is from the commencement of that date. It has further been held that the Insurance Policy has been obtained on the date of accident, became operative from the commencement of the date of insurance i.e. from the previous mid-night and since the accident took place on the date of policy, the insured became liable. In the instant case, the policy was taken out on 10.2.1988, on which date the premium was paid and the cover note was issued without specifying the timing regarding issuance of Insurance Policy and hence, the policy became operative from 0.00 hrs. on 10.2.1988. The accident occurred at 6 O'Clock on 10.2.1988 and hence, the Insurance Policy covered the risk of the said accident. 16. The learned counsel relied upon the several judgments of the Apex Court which are mentioned in earlier paras. I have gone through all these judgments. The law is well settled that if the policy or cover note 13 mentions the time from which the policy was to operate and such time is later than the time of accident, then the risk is not covered. I have already rejected the stand taken by the appellant Insurance Company, that the proposal as well as the cover note indicated the time of 14.30 hrs. to make the Insurance Policy operative. As a result, there is no evidence available on record to show that the policy in question was operating from 14.30 hrs. of 10.2.1988 and did not cover the risk of accident which occurred on 10.2.1988 at 6 O'Clock. On the contrary, the Insurance Policy at Exh. 67 clearly established that the Insurance Policy became operative from 0.00 hrs. on 10.2.1988 and it covered the risk of the accident in question. In view of this, none of the judgments cited by the learned counsel for the appellant are of any help. 17. In that view of the matter, I do not find any substance in the instant appeal. The same, is therefore, dismissed with no order as to costs. [ R.K. DESHPANDE, J. ] ssc/fa349.94