An insurance policy is void from its inception if it is obtained by fraudulent misrepresentation or concealment of a material fact. However, the insurer has the onus of proving fraud or misrepresentation beyond reasonable doubt.

( 1 ) THIS appeal under S. 110-D of the Motor Vehicles Act, 1939, for short, the Act; has been filed by the Oriental Fire and General Insurance Company, Ltd. against the award dated 21-2-1983, passed in claim case No. 1 of 1981, by the Motor Accident Claims Tribunal, Gwalior, for short, the 'tribunal', whereby compensation of Rs. 41,500/-with interest at the rate of 9% per annum plus costs of Rs. 700/- was awarded to the injured/claimant for the injuries/ fracture of rib Nos. 4, 5, 6 and clavical caused in an accident on 10-12-1979 at about 10. 30 a. m. by the use of motor vehicle, passenger bus No. MPH 448, driven by respondent No. 4 during the course of employment of respondent No. 3.

( 2 ) CLAIMANT / respondent No. 1, after notice of the appeal, filed cross-objections under Order XLI, R. 22, CPC, for enhancement of the compensation. During the pendency of the appeal, the injured claimant died hence, his name was deleted, as his legal representative, the respondent No. 2, the mother, was already on record.

( 3 ) THE facts are not in dispute which have been given in the order under appeal and hence, are not repeated here. However, for the present appeal, some facts relating to insurance of the vehicle, and liability of the appellant company to indemnify the insured are necessary. The case of the appellant company is that owner of the vehicle obtained insurance of the vehicle without disclosing the fact of accident which occurred half an hour prior to issue of the cover note (Ex. D/ 3) which covered the risk commencing from 11. 00 a. m. of 10-12-1979. The plea of avoiding the risk and policy being void from its inception as was obtained by making material concealment as to true state of facts by the owner of the vehicle was taken by incorporating the amendment on 6-11-1982 in the written statement, filed on 26-11-1981. On the amended pleadings issue No. 7 was raised. The owner of the vehicle, the respondent No. 3 examined himself who stated on oath that he paid the premium of Rs. 427/- to Mr. S. K. Sapra (NAW 1) examined on behalf of the appellant company, between 4. 00 and 5. 00 p. m. in the office, a day before, who assured him that, the vehicle, will be insured from 10-12-1979. He also stated that Mr. Sapra obtained his signature A to A on a blank proposal form (Ex. D/ 4 ). He is an illiterate person, he can only sign. He does not know English, nor Hindi well. When he came back from Agra after 3/4 days, NAW 1 gave him the receipt and the cover note. He specifically denied that he signed the proposal form on 10-12-1979. He also denied that he was in knowledge of the accident on 10-12-1979 when, according to the appellant company, he paid the premium and signed the proposal form. Appellant Company examined two departmental witnesses NAW 1, S. K. Sapra and NAW 2, Laxman Masand. NAW 1 stated that owner insured came on 10-12-1979 at about 11. 00 a. m. in the office where the proposal form filled by him was accepted in which answers to questions were given and he put his signature thereon. In answer to question No. 14, in the proposal form, which relates to the happening of any accident to the motor vehicle proposed to be insured or having any claim been made upon by the owner in connection with the motor vehicle during the last three years of which the brief particulars were required, the owner gave the answer "no". The premium was deposited on 10-12-1979 of which receipt (Ex. D/5) was issued by Laxman Masand (NAW 2 ). Thereafter, the cover note was issued covering the risk from 11. 00 a. m. of 10-12-1979.

( 4 ) THE Tribunal while deciding this issue against the appellant company, held that after issue of cover note, Policy (Ex. D/1) was issued covering risk from 10-12-1979 to 9-12-1980. The risk was not covered from any specified time of 10-12-1979 in the Policy. After the issue of cover note and the Policy, the cover note or the policy was not cancelled, nor avoided nor was the amount of premium refunded, withi