J U D G M E N T

This Civil Miscellaneous Appeal is filed by Insurance Company/2^nd respondent against the award dated 05.02.2019 made in M.C.O.P.No.276 of 2015 on the file of the Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Kumbakonam.

2. The case of the claimants as set out in the claim petition is narrated hereunder in brief:

(a) On 20.06.2008, at about 9.45 a.m., while the deceased Sundaram was proceeding by walk along the outer ring road to the east of SM weighing bridge, a Maruti car bearing Registration No.TSG 5155 came in a rash and negligent manner from Thanjavur-Kumbakonam road and hit on a cow as well as the deceased and further, hit on an electric pole and thereafter, the low lying area on the road. Due to the said impact, the said Sundaram sustained severe injuries and succumbed to the said injuries. Due to the rash and negligent driving of the driver-cum-owner of the car, the accident happened and he is liable to pay compensation to the dependents of the deceased/Sundaram.

(b) On behalf of the first respondent, it was contended by filing a counter to the effect that the first respondent did not drive the vehicle in a rash and negligent manner. When the cow got frightened and came to the center portion of the road, the deceased/Sundaram, without minding about the car, proceeded on the road and he came in front of the car in order to catch the cow. Due to which, the deceased hit on the car, sustained injuries.

Beacause of his negligence only the accident occurred.

(c) Whereas, on the second respondent side, it was contended that on the date of accident, there was no insurance coverage for the car, bearing Registration No.TSG 5155.

(d) At trial, on the claimants side, two witnesses were examined and seven documents were marked. On the second respondent side, three witnesses were examined and three documents were marked.

(e) Upon consideration, the Tribunal has fastened the liability on the owner of the car and directed the second respondent to pay the compensation of Rs.7,99,204/- to the claimants.

3. The learned counsel for the appellant/Insurance Company would vehemently argue that on the date of accident, namely, on 20.06.2008, there was no insurance coverage for the first respondent/car. He would further contend that as per Ex.R2/policy copy, the policy period is from 23.06.2008 to 22.06.2009.

4. In order to buttress his arguments, the following judgments were referred to:

1. Balbir Kaur and others vs. New India Insurance Company Limited and others reported in 2009 (13) SCC 370

2. Oriental Insurance Company Limited vs. Porselvi and another reported in 2009 (15) SCC 116;

3. The Branch Manager, National Insurance Company Limited vs.

Vijayalakshmi reported in 2017 (1) TN MAC 168 (DB)

5. Per contra, the learned counsel for the respondent Nos.2 to

5/claimants would vehemently contend that the Insurance Company cannot disown its liability, having received the premium amount on 19.06.2008. As per Section 64-VB of the Insurance Act, 1938, if the Insurance Company received the premium, it should not come with a plea that as per the terms of the insurance policy, they are not liable to pay the compensation.

6. In order to substantiate his arguments, reliance has been placed on the following judgments:

a. Oriental Insurance Company Limited vs. Dharam Chand and others (Civil Appeal No.5204 of 2003 (SC), dated 27.08.2010);

b. Oriental Insurance Company Limited vs. Venkatraman and others (C.M.A.Nos.542 to 544 of 2008, dated 18.07.2012).

7. This Civil Miscellaneous Appeal is preferred mainly on the issue of liability.

8. In Balbir Kaur’s case (cited supra), the policy was issued from the future date and the accident occurred before effective date of policy. However, the Tribunal awarded the compensation, holding that the insurer was liable. This finding was reversed by the High Court, stating that the insurer was not liable for payment of compensation, since the policy did not come into force and directed the appel