1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Appeal No. 131/1999 {National Insurance Company Ltd. versus Surendra Singh (Deceased) through LRs and others} Date of Order :: 10th August, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. R.S. Agrawal, counsel for the appellant. Mr. Deepak Soni, counsel for the Lrs of claimant respondent no.1 Mr. S.S. Naruka, counsel for the owner- respondent no.3 Mr. Rajendra Raghav on behalf of Mr. Rakesh Counsel, counsel for the respondent no. 7 BY THE COURT: Challenge in this appeal is to the judgment and award dated 2nd June, 1997 rendered by the Motor Accident Claims Tribunal, Jhunjhunu, whereby the learned Tribunal decreed an amount of Rs. 1,27,000/- in favour of claimant respondent no.1 and against the non claimants (owner and driver of the offending vehicle) and the appellant Insurance Company. 2. Background facts of this case, in a nut shell, are thus: “That on 6th November, 1990 at about 8.00 PM, 2 claimant Surendra Singh was waiting for a bus at Bus Stand Mukandgarh Mandi as he was to go to his village. It is stated that one Jeep No. RRT 5392 came at the bus stand. He boarded the same and occupied the rear seat of Jeep. It is further stated that when the Jeep having crossed the Railway Crossing, landed on Jaipur-Jhunjhunu road, suddenly one truck bearing registration no. DIG 9441 emerged from opposite direction an collided with the Jeep. This truck was being driven by its driver rashly and negligently and caused the accident on wrong side. This accident resulted into the injuries to the claimant, who fell from the Jeep on the road.” 3. The claimant Surendra Singh filed a claim petition before the Tribunal. The learned Tribunal having considered the submissions made by the counsel for the respective parties, decreed an amount of 1,27,000/- in favour of the claimant and against the non claimants (driver and owner of the offending vehicle) as also 3 the insurance company. 4. Heard learned counsel for the parties and carefully perused the relevant material on record including the impugned award. 5. Learned counsel for the appellant canvassed that albeit the offending vehicle was insured on 6th November, 1990 at 5.15 PM, but the insurance policy cover note (Ex. 7) suggests the contract, between the insured and the insurer with regard to commencement of the insurance policy from 7th November, 1990 to 6th November, 1991. The insurance policy was not effective on 6th November, 1990 at 8.00 PM, hence the Insurance Company cannot be fastened with the liability to pay the amount of compensation. He has placed reliance on the judgment of the Hon'ble Apex Court rendered in the case of Oriental Insurance Company Ltd. Versus Porselvi and Another reported in II (2009) ACC 613 (SC). 6. E Converso, the learned counsel appearing for the claimants respondents defended the impugned award and stated the 4 same to be apt and just. He further contended that the learned Tribunal has not committed any error in fastening the liability on the Insurance Company and the impugned award warrants no intervention and further the appeal filed by the Insurance Company deserves to be dismissed. 7. Having reflected over the submissions made by the learned counsel for the parties, it is noticed that the factual position is almost undisputed and the only dispute relates to the date of commencement of the policy i.e. the date from which the policy was in operation. The accident took place on 6th November, 1990. The policy covers the period from 7th November, 1990 to 6th November, 1991. 8. A three-Judge Bench of Hon'ble Apex Court in New India Assurance Co. Ltd. Versus Sita Bai (Smt.) and Others, II (1999) ACC 451 (SC)=(1999) 7 SCC 575, inter alia observed as follows: “6. The correctness and applicability of the judgment in Ram Dayal case, (199) 2 SCC 680] came up for consideration before this Court subsequently 5 in a number of cases. In New India Assurance Co. v. Bhagwati Devi, (1998) 6 SCC 534, a three-Judge Bench of this Court relied upon the view taken in National Insurance Co. Ltd. v. Jikubhai Nathuju Dabhi [(1997) 1 SCC 66] wherein it had been held that if there is a special contract, mentioning in the policy the time when it was bought, the insurance policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal case where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following, but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhi case has been subsequently followed in Oriental Insurance Co. Ltd. v. Sunita Rathi, (1998) 1 SCC 365, by a three-Judge Bench of this Court also.” 9. Since the effect of the aforesaid factual position has not been considered by the learned Motor Accident Claims Tribunal, Jhunjhunu, I set-aside the impugned judgment and award and remit the 6 matter for fresh consideration in accordance with the provisions of law. 10. The appeal is disposed of accordingly. (MAHESH BHAGWATI),J. DK/- 7 S.B. Civil Misc. Appeal No. 131/1999 {National Insurance Company Ltd. versus Surendra Singh (Deceased) through LRs and others} Date of Order :: 10th August, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. R.S. Agrawal, counsel for the appellant. Mr. Deepak Soni, counsel for the Lrs of claimant respondent no.1 Mr. S.S. Naruka, counsel for the owner- respondent no.3 Mr. Rajendra Raghav on behalf of Mr. Rakesh Counsel, counsel for the respondent no. 7 The judgment has been pronounced today in the open court. The operative portion of the judgment is as under:- “Since the effect of the aforesaid factual position has not been considered by the learned Motor Accident Claims Tribunal, Jhunjhunu, I set-aside the impugned judgment and award and remit the matter back for fresh consideration in accordance with the provisions of law. The appeal is disposed of accordingly.” (See separate judgment). (MAHESH BHAGWATI),J. DK/-