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1995 JLJ 342
S.K. Dubey and A.S. Tripathi, JJ.
Oriental Fire and General Insurance Co. Ltd. v. Ramsingh and others
M.A. No. 58 of 1983; Decided on 12.8.1994.
(2) Insurance Act, 1938 -- S. 45 -- policy obtained suppressing fact of parting with possession of vehicle -- insurer may disown its liability under the policy. 1962 JLJ 1128 relied on. [Para 9
(3) Motor Vehicles Act, 1939 -- S. 96 -- insurer intending to avoid liability under the policy on ground of fraud -- should establish such plea beyond all reasonable doubt.
When Insurance Company takes stand of fraud or misrepresentation and seeks avoidance of the Policy to the ground of fraud or misrepresentation or concealment of a material fact, in order to entitle-the insurer to avoid the policy, insurer has to prove that it has been procured by means of fraudulent misrepresentation as to matters material to the rise. A charge of fraud, naturally requires a high degree of probability. It must be established beyond all reasonable doubt and could not be based on suspicion and conjectures. Fraud is odious and cannot be presumed. AIR 1941 PC 931, AIR 1961 Punj. 353, AIR 1965 Mad. 357 and 1970 Lab. I.C. 598 Gul relied on. [Para 10
(4) Motor Vehicles Act, 1939 -- S. 96 and 95 -- avoidance of liability by insurer on ground of concealment of material fact of prior accident -- policy not cancelled -- defence sought to be taken by amendment after two years -- liability cannot be allowed to be repudiated.
After the cover note, the policy (Ex. D/1), was issued which is a contract of insurance and contains the terms and conditions of the insurance and also the clauses whereon liability can be avoided. In the policy, no time is specified. It is only the date and the date certainly starts from the previous midnight Yet, there is another important aspect that the appellant Company did not, within fifteen days of the occurrence, cancel the policy, nor repudiate the liability, nor refund the premium amount After notice of the claim application, no such defence was raised in the written statement; the plea was taken by way of an amendment after two years, that too, without particulars. In such circumstances, when the policy having not been avoided or cancelled, nor the premium received was returned, repudiating the liability within fifteen days of the insurance, it cannot be held that the policy was void from its inception. [Para 13
(5) Third Party Insurance Rules, 1946 -- R. 4 -- time of commencement of policy specified in cover-note -- it does not bind the third party. AIR 1990 Kerala 202 relied on. [Para 14
(6) Motor Vehicles Act, 1939 -- S. 110CC -- interest on the amount of award -- shall not be less than 12% per annum from the date of application till payment. 1991 JLJ 733 (FB) relied on. [Para 16
(7) Motor Vehicles Act, 1939 -- S. 110CC -- appeal against award remained pending for 11 years for no fault of insurer-appellant -- interest awarded from date of application till award and for further period of six years. (1988) 4 SCC 284 followed. 1992 (I) VIBHA 341 relied on. [Para 16A.
¼1½ chek vf/kfu;e] 1938 && /kkjk 45 && ikfylh rkfRod rF; dks diViwoZd Nqik dj vfHkizkIr && nwf"kr gSA , vkb vkj 1962 ,l lh 814 vuqlfjrA ¿ iSjk 9À
¼2½ chek vf/kfu;e] 1938 && /kkjk 45 && ikfylh ikfylh ;ku ds dCts NwVus ds rF; dks Nqikrs gq, vfHkizkIr dh xbZ && chekdrkZ ikfylh ds v/khu vius nkf;Ro dks vuaxh—r dj ldrk gSA 1962 ts ,y ts 1128 voyafcrA ¿ iSjk 9À
¼3½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 96 && chekdrkZ dks vk‘k; diV ds vk/kkj ij nkf;Ro ls ifjotZu dk && ,slk vfHkopu ;qfDr;qDr lansg ls ijs LFkkfir djuk pkfg,A
tc chek daiuh }kjk diV vFkok nqO;Zins‘ku dk vk/kkj fy;k tkrk gSA rFkk diV vFkok nqO;Zins‘ku vFkok rkfRod rF; Nqikus ds vk/kkj ij ikfylh ds ‘kwU;dj.k dh bZIlk dh tkrh gS] rc chekdrkZ dks ikfylh ds ‘kwU;dj.k dk gdnkj cukus ds fy,] chekdrkZ dks lkfcr djuk gksrk gS fd og tksf[ke ds rkfRod fo"k;ksa ds diViw.kZ nqO;Zins‘ku }kjk mikIr dh xbZ gSA diV ds vkjksi esa] izk—frd :i ls vf/kd ek=k esa vf/klaHkkO;rk visf{kr gSA og ;qfDr;qDr lansg ls ijs LFkkfir fd;k tkuk pkfg, rFkk lansg vkSj vVdyckft;ksa ij vk/kkfjr ugha gks ldrkA diV ?k`.kkLin gS] mldh mi/kkj.kk ugha dh tk ldrhA , vkb vkj 1941 ih lh 931] , vkb vkj 1961 iatkc 353] , vkb vkj 195 enzkl 357 rFkk 1970 ysc vkb lh 598 xqtjkr voyafcrA ¿ iSjk 10À
¼4½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 96 rFkk 95 && iwfoZd nq?kZVuk dk rkfRod rF; Nqikus ds vk/kkj ij chekdrkZ }kjk nkf;Ro dk ifjotZu && ikfylh jn~n ugha dh xbZ && nks o"kZ i‘pkr~ la‘kks/ku }kjk izfrokn && bZfIlr nkf;Ro dk fujkdj.k vuqKkr ugha fd;k tk ldrkA
tksf[ke xzg.k i= ds i‘pkr~ ikfylh ¼izn‘kZ Mh&1½ tkjh dh xbZ tks chek dh lafonk gS rFkk ftlesa chek ds fuca/ku vkSj ‘krsZa rFkk og [kaM ftu ij nkf;Ro dk ifjotZu fd;k tk ldrk gS] varfoZ"V gSA ikfylh esa dksbZ le; fofufnZ"V ugha gSA ek= fnukad gS rFkk fnukad fuf‘prr% iwoZorhZ e/;jkf= ls vkjaHk gksrk gSA blds vfrfjDr ,d vkSj egRoiw.kZ igyw gS fd vihykFkhZ daiuh us ?kVuk ds ianzg fnu ds Hkhrj] u ikfylh jÌ dh] u nkf;Ro dk fujkdj.k fd;k vkSj u gh izhfe;e dh jde ykSVkbZA nkok vkosnu dh lwpuk ds i‘pkr~ ,slk dksbZ ifrokn fyf[kr dFku esa ugha mBk;k x;k( vfHkopu nks o"kZ i‘pkr~ la‘kks/ku ds :i esa fy;k x;k] og Hkh fof‘kf"V;ksa ds fcukA ,slh ifjfLFkfr;ksa esa tc u ikfylh ‘kwU; vFkok jÌ dh xbZ] u gh chek ds ianzg fnu ds Hkhrj nkf;Ro dk fujkdj.k djrs gq, izkIr fd;k x;k izhfe;e ykSVk;k x;k] ;g vfHkfu/kkZfjr ugha fd;k tk ldrk fd ikfylh izkjaHk ls gh ‘kwU; FkhA ¿ iSjk 13
¼5½ ijO;fDr chek fu;e] 1946 && fu- 4 && ikfylh ds izkjaHk dk le; tksf[ke xzg.k i= esa fofufnZ"V && ijO;fDr dks vkc)dj ugha gSA , vkb vkj 1990 dsjy 202 voyafcrA ¿ iSjk 14
¼6½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 110 xx && vf/kfu.kZ; dh jde ij C;kt && vkosnu ds fnukad ls Hkqxrku rd 12 izfr‘kr izfro"kZ ls de ugha gksxkA 1991 ts ,y ts 733 ¼iw.kZ U;k;ihB½ voyafcrA ¿ iSjk 16
¼7½ eksVj ;ku vf/kfu;e] 1939 && /kkjk 110 xx && vf/kfu.kZ; ds fo:) vihy 11 o"kZ rd yafcr jgus esa chekdrkZ && vihykFkhZ dk dksbZ nks"k ugha && vkosnu ds fnukad ls vf/kfu.kZ; rd rFkk Ng o"kZ dh vfrfjDr vof/k ds fy, C;kt vf/kfu.khZrA ¼1988½ 4 ,l lh lh 284 vuqlfjr] 1992 ¼1½ foHkk 341 voyafcrA ¿ iSjk 16d
S.K. Dubey, J. -- 1. This appeal under section 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 ribs 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, Rule 22, Civil Procedure Code, 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 (NAW1) 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, within f
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