IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT The Oriental Insurance Company Ltd. Versus Lichama & Ors. S.B. CIVIL MISC. APPEAL NO. 471/1997 Date of Judgment : 07.10.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. M.S. Sheikh on behalf of Mr. Varun Gupta for the appellant Mr. S.L. Sankhla ] Mr. M.D. Boob ] for the respondents BY THE COURT This appeal has been filed by the appellant Oriental Insurance Company Ltd. through Divisional Manager, Divisional Office, Residency Road, Jodhpur Branch against the award dated 03.04.1997 passed by the learned Motor Accident Claims Tribunal (First), Jodhpur in Motor Accident Claim Case No. 484/1995. The necessary facts of the case are that on 06.02.1993 in the afternoon at about 3.00 p.m. Murlidhar was going on his bicycle from Krishi Mandi, Jodhpur towards Mahamandir Railway Station. Near Page 1 of 6 Bhadwasia Railway Crossing, Hadmanaram tractor driver while driving tractor No. RJ-19-1604 rashly and negligently and in wrong side caused accident to Murlidhar and as a result of that accident, Murlidhar died on the spot. A criminal case was registered in the Police Station Mahamandir. The tractor was alleged to be insured with the appellant Insurance Company (hereinafter referred to as the 'Insurer'). The age of the deceased was 23 years at the time of the accident. A claim was presented before the Motor Accident Claims Tribunal, Jodhpur by the legal representatives of the deceased for the damages of Rs.5 lacs. The insurer contested the claim by filing written statement pleading inter alia that the tractor involved in the accident was not insured with the appellant at the time of the accident and further pleaded that it was insured by Policy No. 2422/303/04696/31/94/02718 with effect from 3.50 p.m. of 06.02.1993 to 05.02.1994 and the accident took place on 06.02.1993 at about 3.00 p.m. The insurer further pleaded that the tractor was rather insured after happening of the incident because the time of the accident as per the claimants' application was 3.00 p.m. Of 06.02.1993 and the policy came into effect from 3.50 p.m. of 06.02.1993. The owner of the vehicle as well as the driver were also made party and they also submitted their reply in response to the claim petition. The learned Tribunal framed 5 issues, out of which issue No. 1 related to the accident and the Page 2 of 6 issue No. 2 related to quantum of compensation. Issue No. 3 was framed about the effect of the insurance policy coming into force with effect from 3.50 p.m. of 06.02.1993 and the issue No. 4 was about the possession of valid driving licence by the driver. The learned Tribunal decided the issue No. 3 in favour of the claimants and against the insurer. The learned Tribunal while deciding the issue No. 3, relied upon the judgment of this court in the case of United India Insurance Co. Ltd. Vs. Tara Chand & Ors. reported in RLR 1995 (1) 364. The Insurance Company challenged the decision of the learned Tribunal on the issue No. 3 with the same contention that the Insurance Company could not be held liable to pay the said compensation as the insurance was obtained by the owner of the vehicle after the time of the accident. The learned counsel for the appellant Insurance Company contended that the policy produced before the learned Tribunal clearly showed that the insurance policy came into effect from 3.50 p.m. of 06.02.1993 and since the accident in question took place prior to the issuance of the insurance policy or the cover note at about 3.00 pm. of 06.02.1993, the Insurance Company cannot be held liable since the accident took place earlier to the time from which the insurance policy came into effect. The learned counsel for the appellant Page 3 of 6 Insurance Company relied upon the following judgment in support of his submissions :- (i) New India Assurance Company Ltd. Vs. Kumar Saroj & Ors. reported in 2007 R.A.R. 94 (Raj.) (ii) National Insurance Company Ltd. Vs. Jikubhai Nathuji Dabhi & Ors. reported in 1997 ACJ 351 On the other hand learned counsel for the respondents submitted that the Insurance Company cannot be absolved from its laibility on the ground as contended by the learned counsel for the appellant and while defending the judgment of the learned Tribunal, they relied upon the following judgments:- (i) Smt. Jasoda & Ors. Vs. Mahendra Singh & Ors. reported in 2009 (1) DNJ (Raj.) 528 (ii) National Insurance Co. Vs. Sua Lal Sharma & Ors. reported in 2008 (2) DNJ (Raj.) 1081 (iii) United India Insurance Co. Ltd. Vs. Tara Chand & Ors. reported in RLR 1995(1) 364 I have perused the judgments submitted by learned counsel for the parties and also perused the judgment of the learned Tribunal and further pondered over the arguments advanced by the learned counsel for the parties. So far as the judgments cited by the learned counsel for the respondents are concerned, in my considered opinion, the facts of those cases are different from the present case, therefore, the judgments cited by the learned counsel for the respondents are not relevant to the present case for Page 4 of 6 the reason that it was never pleaded by the owner of the tractor that premium was paid earlier to the time of the accident by cash or by cheque or that the cover note was issued prior to the time of the accident. Cover note Ex.A.1 and Policy Ex.A.2 specifically contain the fact of time 3.50 p.m. Of 06.02.1993, thus, the facts of the present case are distinguishable to those of the judgments cited by the learned counsel for the respondents. So far as the judgments cited by the learned counsel for the appellant Insurance Company are concerned, the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Jikubhai Nathuji Dabhi & Ors. (supra) as well as the judgment of the co-ordinate Bench of this court passed in the case of New India Assurance Company Ltd. Vs. Kumar Saroj & Ors. (supra) clearly shows that where the specific time of commencement of the risk has been mentioned in the cover note/policy, then for the accident taking place prior to that point of time, the Insurance Company cannot be held liable. In view of the discussion made above, the appeal filed by the appellant Insurance Company deserves to be allowed and accordingly, the same is allowed. The appellant Insurance Company is exonerated from its liability to pay the amount of compensation in question. The owner of the offending vehicle would be liable to pay the compensation in question. If the compensation in question has already been paid by the Insurance Company, it would be free Page 5 of 6 to recover the same from the owner of the vehicle. The owner of the vehicle shall pay the compensation to the Insurance Company, if already paid by the Insurance Company within a period of three months from today. No order as to costs. [KAILASH CHANDRA JOSHI],J. Pramod Page 6 of 6