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2006 Supreme(AP) 789
Andhra Pradesh High Court
Judges : CHIDANANDA ULLAL, V.JAGANNATHAN
B.N.JEEVAN PRAKASH - Appellant
Versus
SHABEER AHAMAD SHARIFF - Respondent
Decided On : 07/15/2006
M. F. A 2636 Of 2001
Headnote:
Motor Vehicle – Accident – Injuries – Compensation granted – Liability of insurance company – When liable – Quantum of compensation – Appellant who had sustained fracture of the left forearm in an accident that took place was awarded compensation and liability was put on shoulders of driver and owner – It is this order, which is questioned in this appeal – Accident occurred when the owner had paid the premium as per Exh. P3, but, however, the policy was issued, to be commencing from 2. 12. 1998, as per Exh. R1 and Tribunal taking note of the time mentioned in the policy, Exh. R1, did not fasten the liability on the insurance company, but on the other hand, directed the owner of the vehicle, respondent no. 2, to satisfy the award amount and as such this finding of the Tribunal is erroneous – Held, in the case on hand also as the insurance policy, Exh. Rl, clearly mentions the time of commencement of the policy, the question of policy in question coming into force on the midnight of the previous day, i. e. , on 1. 12. 1998 as contended by the appellants counsel does not arise – Tribunal has awarded Rs. 15,000 on various heads put together. In view of the medical evidence stating that the appellant has sustained the fracture of left hand forearm and rod is inserted and there is some obstruction in the movement of the wrist, it is clear that appellant has some disability in the left arm – However, there is no loss of future income as he happens to be a government servant. Having regard to percentage of disability opined by the doctor, court view that for fracture of the bone, the sum of Rs. 25,000 can be awarded to the appellant. The rest of amounts awarded by Claims Tribunal are however sustained – No error in finding of Tribunal absolving insurance company of liability to satisfy award and fastening the liability on insurance company – Appeal partly allowed.
( 1 ) THE appellant who had sustained fracture of the left forearm in an accident that took place on 1/12/1998 at 9 a. m. was awarded a sum of Rs. 50,000. 00 (sic Rs. 15,000. 00) as compensation and the liability was put on the shoulders of the driver and the owner. It is this order, which is questioned in this appeal.
( 2 ) WE have heard learned counsel for the appellant and Mr. O. Mahesh, learned counsel for respondent No. 3.
( 3 ) INSOFAR as the question of liability is concerned, it is submitted by the learned counsel for the appellant that the accident took place on 1. 12. 1998 at 9 a. m. and on the very same day, the owner had paid the premium as per Exh. P3, but, however, the policy was issued, to be commencing from 2. 12. 1998, as per Exh. R1 and the Tribunal taking note of the time mentioned in the policy, Exh. R1, did not fasten the liability on the insurance company, but on the other hand, directed the owner of the vehicle, respondent no. 2, to satisfy the award amount and as such this finding of the Tribunal is erroneous. Further, the learned counsel has placed reliance upon the decisions reported in Kantilal Nagarbhai Khristi v. Kantibhai punjabhai Thakor, 1991 ACJ 1037 (Gujarat)and Oriental Insurance Co. Ltd. v. Sivan, 1990 ACJ 533 (Kerala), to contend that the policy would take effect from the midnight of the previous day and such policy will cover the time and date of the accident in the instant case on hand. Therefore, he submits that the liability be fastened on the insurance company.
( 4 ) ON the other hand, learned counsel mr. O. Mahesh, appearing on behalf of the insurance company submitted that Exh. R1, the policy, makes it clear that it was to commence from 'o' clock on 2/12/1998 and, therefore, as on the date of the accident, i. e. , on 1. 12. 1998, the policy was not in force and as such the Tribunal has rightly absolved the insurance company of its liability to satisfy the award amount.
( 5 ) HAVING taken note of the decisions cited by learned counsel for the appellant, we are of the considered opinion that in view of the policy, Exh. Rl, clearly indicating the time of commencement of the policy, namely, from 'o' clock on 2/12/1998, the question of policy coming into force on the midnight of the previous day will not arise. In this regard, we place reliance upon the decision of the Hon'ble Apex Court in new India Assurance Co. Ltd. v. Bhagwati devi, 1999 ACJ 534 (SC), wherein it is observed thus:
" (2) The facts giving rise to the appeal are minimal. The appellant insurance company sold a policy at about 4 p. m. on 17. 2. 1989. Undeniably, it had been bought at a time when an accident pertaining to the vehicle insured had already taken place at about 9 a. m. the same day. The fatal accident occurring thereby gave rise to a claim for damages before the motor Accidents Claims Tribunal. The same was allowed on the strength of the decision of this court aforementioned, correctness of which has been challenged. The said decision proceeded on the legal fiction that when a policy is taken on a particular date, its effectiveness would start from the commencement of that date which is from the previous midnight. The accident taking place at any time during the day would be covered by the policy. Later a three-member Bench of this court in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi, 1997 ACJ 351 (SC), has taken the view that when there is a special contract mentioning in the policy the time when it was bought, it would be operative from that time and not fictionally from the previous midnight. In the said case, the policy had been bought at about 4 p. m. on the day of the accident and, thus, was not allowed to be operative from midnight; the accident having occurred around 11 a. m. on that date. The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day follo
