The burden of proof lies with the insurance company to establish the discontinuation of the old policy and the relevance of the old policy in determining the liability of the insurance company.

SUBHASH SAMVATSAR, J.

( 1 ) THIS appeal is filed by the insurance company under section 173 of the Motor Vehicles Act, 1988, challenging the award dated 28. 10. 1991 passed by the Motor Accidents Claims tribunal/third Additional Judge to the court of District Judge, Gwalior (for short, 'the Claims Tribunal') in Claim Case No. 189 of 1998, whereby the Claims Tribunal has awarded an amount of Rs. 30,000 with 12 per cent interest per annum towards compensation for the death of a 12-year old girl Manoj Kumari.

( 2 ) THE claimants have also filed cross-objections for enhancement of the amount of compensation.

( 3 ) THE main contention raised by the learned counsel for the appellant is that the insurance company is not liable to indemnify the said award, as the vehicle was insured with the insurance company on 15. 9. 1986 at 3. 15 p. m. , while the accident occurred on 15. 9. 1986 at 6,45 a. m. Exh. D1 is the cover note mentioning this fact that premium was deposited by the insured on 15. 9. 1986 at about 3. 15 p. m. Exh. D2 is the insurance policy issued on the basis of the cover note Exh. D1. Contention of the learned counsel for the appellant is that once time is mentioned on the cover note, then the liability of the insurance company to indemnify the loss starts from that time and not from the zero hours of the said date. According to the learned counsel the accident has taken place on 15. 9. 1986 at about 6. 45 a. m. , i. e. , before issuing the cover note; hence, the insurance company is not liable to indemnify the said award. For this purpose counsel for the appellant has relied on the judgments of the Apex court in cases of Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 ACJ 121 (SC); national Insurance Co. Ltd. v. Jikubhai nathuji Dabhi, 1997 ACJ 351 (SC) and national Insurance Co. Ltd. v. Chinto devi, 2000 ACJ 1597 (SC ). In all these cases the Apex Court has laid down that once the time is mentioned in the cover note then the risk of the insurer starts from that time and not from the midnight.

( 4 ) IN reply to this argument, learned counsel for the respondent Nos. 1 and 2, pointed out that the Exh. D2 is a renewed policy and 15 per cent no claim bonus is allowed to the insured which shows that the policy is not a new policy but is a renewed policy. Kailash Narain Sharma, dw 1, who is the witness examined by the insurance company, has admitted in para 5 of his statement that the Exh. D2 is a renewed policy and no claim bonus of 15 per cent was given to the insured. He also admitted that the insurance company has not cancelled the policy, Exh. D2. Thus, as per the counsel for respondent Nos. 1 and 2, it is clear that the vehicle which was involved in the accident resulting in the death of Manoj Kumari, was insured with the appellant insurance company prior to 15. 9. 1986 and, therefore, the insurance company is liable to indemnify the loss. Counsel for the respondents-claimants has also submitted that there is no dispute about the proposition advanced by the counsel for the appellants to the effect that once time is mentioned on the cover note then the risk of the insurance company starts from the said time. However, the said principle will not be applicable in the present case where the policy is renewed in continuation of the old policy, because in such a situation the risk will be governed by the old policy and not by the new policy.

( 5 ) IN the present case from the statement of the witness examined by the insurance company, namely, Kailash Narayan sharma, DW 1, it is clear that this case is of a renewed policy and 15 per cent no claim bonus was given to the insured by the insurer/insurance company. Thus, it is also clear that earlier also the vehicle was insured with appellant insurance company. In such circumstances it was for the insurance company to produce the document of the old insurance policy to prove that the new policy was not in continuation of the old policy and was issued after the break of some period

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