N.K. Jain, J.--1. This is an appeal by the claimant u/s. 173 of the Motor Vehicles Act, 1988 from the award dated 20th August 1994 passed by VIth Addl. Motor Accident Claims Tribunal, Indore in his Claim Case No. 64/91 awarding him compensation of Rs. 81,931/- against the respondent No.1 and 2 and not against Ins. Company (respondent No.3).

2. Briefly stated facts as unfolded are that the claimant met with an accident, occurring on 22.4.1991 at 5.30 P.M. on Nemawar Road, near Indore, by the truck bearing registration number MPM 3265 owned by the respondent No. 1 and driven by the respondent Nof. 2. The appellant fractured his right leg which had to be ultimately amputated. The vehicle was insured earlier with The New India Insurance Company Ltd., upto 15.3.1991 but instead of obtaining a renewal, a fresh insurance was taken from the respondent No.3 (The Oriental Insurance Company Ltd.,) on22nd April 1991 which is the date of the accident. These facts along with the finding of the Tribunal that the accident occurred due to actionable negligence on the part of the driver of the vehicle are not disputed before us.

3. The appellant claimed Rs. 5 lacs as compensation from all the respondents. The respondent No.1 and 2 i.e., the owner and the driver of the vehicle remained absent after service of summon and were, therefore, proceeded ex-parte by the Tribunal. The respondent No.3 i.e., the insurer repudiated its liability on the ground that the policy had been taken at 9.00 P.M. on 22.4.1991 i.e., after the accident and, therefore, it had no liability to meet the demand. It was further alleged that the owner insurer had knowledge of the accident and this material fact was deliberately concealed by him at the time of taking fresh insurance and on this count also the Insurance Company was not liable to meet the claim. The Tribunal accepted the contention and rejected the claim against the insurer. It awarded Rs. 81,931/- only against the owner and the driver of the vehicle.

4. The claimant has challenged the award on two counts: one, that the Ins. Company too should have been made liable for the compensation, and; two, that the level of the amount of award is too low and needs to be enhanced. Respondent No.1 and 2 have remained absent in this Court too. The appeal is resisted by the respondent No.3 Ins. Company alone. Counsel for the Ins. Company (resp. No.3) strenuously submitted that the Ins. Company was not liable for the reasons noted below:

(i) there is evidence to indicate that the Ins. Policy did not come into existence before 9.00 P.M. on the date of accident and since the accident occurred at 5.30 P.M. on the day, the company was not liable;

(ii) The cover note (Ex. D1-C) contained the time proclaiming immunity till then;

(iii) The insured owner did declare against specific column in the proposal form (Ex. D-1) that no accident is caused by the vehicle in question upto the time of seeking insurance. There was thus fraudulent suppression of material fact which vitiated the policy; and

(iv) Sec. 64 B.B. of The Insurance Act makes the policy enforceable only after payment/acceptance of premium.

5. There is evidence both oral and documentary in the case that the vehicle was insured earlier upto 15th March 1991 with another Ins. Company and the insured instead of obtaining renewal took fresh insurance from the respondent No.3 on 24.4.91. While the cover note (Ex. D2) specifically mentioned the time of insurance i.e., 9.00 P.M., the Certificate of Insurance issued to the insured (vide Ex. p42) does not contain any time of the commencement of the insurance but simply indicates the date as 22nd April 1991 as effective date of commencement of insurance for the purposes of the Motor Vehicles Act 1988. The question which falls for consideration is whether in such circumstances the policy can be taken to be operative only from 9.00 P.M.? The answer is not far to seek. The Apex Court in the case of New India Assurance Co. Ltd., v. Ramdaya