Case: Deokar Exports Pvt. Ltd Vs. New India Assurance Company Ltd

2. By letter dated 7.4.1989, the insurer informed the appellant that it had received the premium amount from MSFC, but as no proposal had been received from appellant, it was not in a position to issue the fire insurance policy. The insurer sent a standard proposal form to the appellant along with the said letter. The appellant filled and signed proposal form and delivered it to the insurer on 16.6.1989. In the said proposal, the appellant stated that insurance cover was required for the period 12.3.1988 to 12.9.1989. But the insurer issued an insurance policy dated 30.6.1989 extending insurance cover for the period 26.8.1988 to 25.8.1989. The Insurer sent the insurance policy to MSFC as required. MSFC did not raise any objection about the period of cover when the policy was received by it. Nor was the policy renewed beyond 25.8.1989.3. On 10.2.1990, the machine was damaged in a fire accident. On 17.2.1990, the appellant lodged a claim for Rs.26,91,139/- with the insurer, in regard to the said damage. The insurer rejected the claim on the ground that there was no insurance cover on 10.2.1990. Feeling aggrieved, the appellant approached the National Consumer Disputes Redressal Commission (`Commission for short) complaining deficiency in service by the Insurer. The said complaint was dismissed on 23.9.1992 on the ground that the complaint involved decision on complex issues of fact and, therefore, the appropriate remedy was by way of suit. The appellant thereafter filed a civil suit on 29.3.1993 claiming Rs.26,91,130/-, being the value of the damaged machine, with interest etc. The appellant submitted that the suit was in time, if the period spent in prosecuting the claim before the Commission was excluded under section 14 of Limitation Act, 1963.4. The Trial Court by judgment and decree dated 16.9.1999 dismissed the suit. It upheld the contention of the appellant that the insurance cover could only be prospective, that is for a period of one year from the date of issue of the policy; and that as the insurance policy was issued on 30.6.1989, it should be deemed to have been issued to cover a period of one year commencing from that date; and that therefore, as on the date of the fire accident - 10.2.1990, the machine must be deemed to have been insured. However, the trial court dismissed the suit as barred by limitation. It refused to exclude the time spent in prosecuting the complaint before the National Consumer Redressal Commission for purposes of limitation. Feeling aggrieved, the appellant filed an appeal before the Bombay High Court contending that the finding regarding limitation was erroneous. The insurer filed cross-objections challenging the finding that the insurance was in force on the date of fire accident. The High Court by its judgment dated 9.3.2001 dismissed the appeal by the appellant and allowed the cross-objections of the insurer. The High Court held the suit was not barred by limitation. But it held that the suit was liable to be rejected on merits, as there was no insurance cover on 10.2.1990. It held that the date of insurance policy was immaterial and what was material was the date of assumption of risk; and as the insurer had assumed risk with effect from 26.8.1988 for a period of one year upto 25.8.1989, it cannot be made liable for a fire accident which occurred after the expiry of the policy. The High Court also noted that when the policy was sent to MSFC, which was acting on behalf of the appellant, no objection was raised in regard to the period of insurance cover.5. The said decision of the High Court is challenged in this appeal by special leave.

Reasoning:
In this case, the proposal sent by the appellant was received by the insurer on 16.6.1989. It required that the period of insurance cover should be for the period 12.3.1988 to 12.9.1989. The reason why the respondent wanted the insurance cover retrospectively from 12.3.1988 is obvious. The initial insurance policy expired on 12.3.1988. Under the terms of finance between MSFC and the appellant, apparently it was necessary to have an uninterrupted and continuous insurance cover during the period the machine was secured in favour of MSFC. Therefore, the appellant wanted the insurance cover to be continued by way of renewal for the period 12.3.1988 to 12.9.1989. But the premium amount for one year was received by the insurer only on 26.8.1988. Having regard to the bar contained in Section 64-VB of the Act, the insurer could not accept the request of the appellant to grant insurance cover with retrospective effect from a date prior to 26.8.1988 when it received the premium. Therefore, the insurer adopted the standard, logical and obvious course of issuing the insurance policy with effect from the date on which it received the premium amount by cheque that is with effect from 26.8.1988. As the premium paid was for one year and the standard term of fire policy was one year, the policy was issued assuming risk for the period 26.8.1988 to 25.8.1989. Non-issue of the policy for the period commencing from 12.3.1988 required by the appellant, was for a good and valid reason. There was also nothing illogical or arbitrary about the insurance of a policy specifying the period of insurance cover as one year effective from the date of receipt of the premium, that is from 26.8.1988 to 25.8.1989. If the appellant wanted insurance cover prospectively it should have so specified in the proposal. Having failed to do so and having sought retrospective cover, the appellant cannot make a grievance when the insurance cover is issued retrospectively from the date of receipt of the premium.10. Another aspect which requires to be noticed is that when the policy was sent by the insurer to MSFC, there was no protest or objection from MSFC that the policy was issued for a wrong period. Nor did it return the policy to the insurer with a request to make it prospective from the date of the policy. The appellant did not choose to examine the policy or cross-check with MSFC about the currency of the insurance policy or about the need to further renewal of the policy. In fact, it would appear from the record that MSFC had written on 31.7.1989 to the appellant that the insurance policy was due to expire in August, 1989. It is, thus, clear that both the appellant and MSFC were aware of the fact that the insurance cover under the policy was for the period 26.8.1988 to 25.8.1989 but neither of them objected to it. Nor was any premium paid for further renewal of the policy beyond 25.8.1989. Obviously, therefore, the insurer cannot be made liable for the loss which occurred on account of a fire accident on 10.2.1990.11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondents acceptance with modification), which would result in, a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter-proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.12. The contention of the learned counsel for the appellant that an equitable view must be taken is untenable. In a contract of insurance, rights and obligations are strictly governed by the policy of insurance. No exception or relaxation can be made on the ground of equity.