Jupiter General Insurance Co. Ltd. vs Smt. Gurswaran Kaur and Others

Harbans Lal, J.—On August 20, 1968, at about 10-30 A.M. a fatal accident took place on Madhya Marg Road near Lajpat Rai Bhavan, Sector 15, Chandigarh, between the scooter driven by Professor Balbir Singh (now deceased), when the same was proceeding towards Sector 17 and was on the left side of the road, and Truck No. PNJ-473 (hereinafter called the truck), belonging to Jaswant Singh and driven by Dalip Singh, respondents. A claim petition was filed by his widow, Gurswaran Kaur and two minor sons and a daughter against the owner and driver of the truck as well as the Jupiter General Insurance Co. Ltd., Bombay (hereinafter called the insurer), stated to be the insurer of the truck. The claim petition was contested on behalf of all. It was held by the Motor Accidents Claims Tribunal, Union Territory, Chandigarh, vide judgment dated February 9, 1972, that the accident had taken place due to the negligence and rash driving by the driver of the truck. The claim petition was decreed and an award to the tune of Rs. 1,31,904 was passed in favour of the claimants and against the owner and the driver of the truck. It was further held that the insurer was liable to the extent of Rs. 20,000 in view of the conditions of the insurance policy. No appeal was filed by either the owner or the driver of the truck. However, the award to the extent of the liability of the insurer has been challenged on behalf of the insurer in the present appeal.

The learned counsel for the appellant had challenged the finding of the Tribunal on issue No. 3, which was to the following effect :

" Whether the insurance company is not liable for the pleas taken in the written statement ? "

The case of the insurer-appellant is two-fold :

(1) The truck with which the accident took place was not insured with the insurer. The truck which was insured, bore registration No. PNU-475 whereas the truck involved in the accident was bearing registration No''. PNU-473 ; and

(2) One truck as belonging to Jaswant Singh, respondent, had been insured with the insurer one day after the accident, that is, on August 21, 1968.

It was stressed that a perusal of the cover note, Ex. P-3, and the certificate of insurance, Ex. P-4, with the carbon copy of the cover note, Ex. R-2, and that of the certificate of insurance, Ex. R-1, produced by the insurer in evidence, leave no manner of doubt that the truck insured with the insurer was bearing registration No. PNU-475, but, subsequently, the figure '' 5 '' after the figures '' 47 '', was changed to '' 3 '' by someone on behalf of the owner of the truck and the insurer never insured the truck.

There is no dispute that the truck involved in the accident bears registration No. PNU-473 and not 475. The carbon copies of the cover note and of the certificate of insurance produced by the insurer are Ex. R-2 and Ex. R-l, respectively. From their perusal, it is evident that the number of the truck insured was PNU-475 and not PNU-473. However a close perusal of the cover note, Ex. P-3, and the certificate of registration, Ex. P-4, issued to the owner of the truck shows that the figure '' 5 '' in the registration number was erased and retyped as ''3'' and the entire number ''473'' was again retyped in cover note, Ex. P-3. According to the statement and report of the handwriting expert, J.C. Thaper, A.W. 5, the figure '' 5 '', as originally typed, was erased and changed to figure '' 3 '', in both these documents. The expert had taken the photographs of the registration number and had also magnified the same. From these photographs, no doubt is left that figure '' 5 '', as orginally typed, was erased and retyped to '' 3 ''. Manjit Singh, R.W. 4, who had insured the truck with the insurer on behalf of its owner, Jaswant Singh, deposed that no change was either made in the cover note, Exhibit P-3, or the certificate of registration, Exhibit P-4, subsequent to the issuance of these documents by the insurer. From a close look at these documents issued to the owner as well as the cover note and also the report of the handwriting expert, no doubt is left that the registration number of the truck iinsured, as originally typed, was 475, but later on, it was retyped as 473.

According to the learned counsel for the appellant, this was as a result of the tampering with the documents by or on behalf of the owner of the truck because the truck had already met with an accident on August 20, 1968, when the same was not insured with the insurer and the owner was anxious to get the same insured from a prior date so as to save himself from liability at least to the extent of the insurer. If this was so, the owner of the truck would be all the more anxious that the truck which had actually met with the accident should be insured and not some wrong truck. The finding of the Tribunal was that Jaswant Singh, respondent, owned only one truck and there was no other truck registered in his name and that registration No. PNU 475 registered with the registration authority under the Motor Vehicles Act (hereinafter called the Act), related to one scooter which did not belong to Jaswant Singh, has not been challenged. In view of the same, it has to be held that it was the truck in question belonging to Jaswant Singh, respondent, which had been insured with the insurer. It is probable that by mistake wrong registration number for the truck had been given or noted in the insurance documents and subsequently or immediately after the insurance, the number was changed from PNU-475 to PNU-473. However, this alteration in the registration number in the insurance documents cannot be held to have any adverse effect on the validity of the insurance policy and on this ground alone, the insurer cannot absolve himself of the liability.

At one stage, it was also conceded by the learned counsel for the appellant that the change in the registration number of the truck in the insurance documents was an act of mistake and cannot be attributed as a result of cheating by the person whosoever was instrumental in doing the same.

The next attack of the learned counsel for the appellant is that as the payment of the premium was made by the owner of the truck one day after the accident, that is, on August 21, 1968, as is evident from the receipt, Ex. R. 3, the insurance policy must be held to have come into existence subsequent to the accident and hence the insurer cannot be fastened with any liability relating to the accident which occurred on August 20, 1968. It was contended in this regard that the appellant had filed an application on July 25, 1969, under Order XI, Rule 12, Code of Civil Procedure, for discovery and inspection of the receipt regarding payment, a copy of which was Ex. R.-3. According to the reply, filed on behalf of the owner of the truck on August 5, 1969, no such receipt had been issued. According to the learned counsel for the appellant, copy of the receipt, Ex. R-3, bears the date August 21, 1968, and was issued in the regular course of business as is clear from the receipt in the receipt book issued by the insurer on the date preceding or following the date of Ex. R-3. I have perused the receipt book and Ex. R-3. I agree with the contention of the learned counsel that this receipt was issued by the insurer on August 21, 1968. According to Manjit Singh, R.W. 4, who go the truck insured on behalf of the owner, he had made the payment of the premium and got the truck insured on August 16, 1968. According to Jasjit Singh Paul, Insurance Inspector, R. W. 1, Prem Pal Dhanda, section head of the insurer, R.W. 2, and Dila Ram Verma, R.W. 3, the truck had been insured with the insurer by Manjit Singh, R.W. 4, on August 21, 1968, and not earlier though the period of the insurance, as mentioned in the cover note and the certificate of insurance, was from August 16, 1968, to August 15, 1969, as the previous policy had expired on August 15, 1968. The cover note, Ex. P-3, and its carbon copy, Ex. R-2, show that it was issued on August 17, 1968. The certificate of insurance, Ex. P-4, and its carbon copy, Ex. R-1, do not bear any date. From the cover note, no doubt is left that the same was issued on August 17, 1968, and not on August 21, 1968. In the natural course of things, the certificate of insurance, Ex. P-4, must have been issued on the same day or one or two days later, but the same must relate back to the date when "the cover note was issued. The mere fact that the receipt regarding payment of premium was issued by the insurer on August 21, 1968, is not sufficient to warrant the conclusion that the insurance policy was issued on August 21, 1968, and not earlier and that, in law, the contract of insurance came into existence on August 21, 1968. Acccording to the evidence produced on behalf of the insurer, no proposal form was filled up on behalf of the owner of the truck though, normally and generally, the said form is filled up and it is thereafter that the said proposal is accepted by the insurer and the insurance policy is issued. Be that as it may, the fact stands that the cover note and the certificate of insurance are clearly indicative of the execution of the contract of insurance between the insurer and the insured on August 17, 1968. It is just possible that the payment of the premium of Rs. 130 may have been made on the same day or even on August 21, 1968. The physical act of the payment of the premium is not of much significance so far as the execution of the contract of insurance between the parties is concerned. It all depends on the mutual relationship between the parties. Besides, it is not possible to hold that merely because the receipt regarding payment was issued on August 21, 1968, the payment of the premium must have been made on that very date and not on the day the cover note was issued. On the other hand, the presumption is that the cover note and the certificate of insurance would not have been issued unless the payment of the premium had been made by the insured.

It was also contended by the learned counsel for the appellant that the insurance policy issued by the insurer was, in the present case, void because on the date when Manjit Singh, R.W., on behalf of the owner of the truck met Jasjit Singh Paul, insurance Inspector, R.W., the accident had already taken place and the insurance policy was got issued with effect from a prior date on the basis of the misrepresentation and non-disclosure of a material fact relating to the accident. Reliance was placed on Sub-clauses (b) and (c) of Sub-section (2) of Section 96 of the Act. There can be no dispute with the proposition of law that in case the issuance of a policy was induced by any misrepresentation or non-disclosure of any material fact, the same will be void and the insurer cannot be fastened with any liability on account of the same. However, the important question is : whether, in the circumstances of a particular case, misrepresentation or failure to disclose material particulars is proved or not ? In the present case, as discussed above, there is no satisfactory evidence to warrant the conclusion that, in fact, the contract of insurance came into existence on August 21, 1968, and not earlier and that the insurance policy was issued on the basis of any misrepresentation. The mere change in the registration number of the truck, in the cover note or the certificate of insurance or the issuance of the receipt regarding the payment of premium on August 21, 1968, does not constitute misrepresentation in the facts and circumstances of this case.

For the reasons mentioned above, there is no merit in the appeal which is dismissed with costs. Counsel fee is fixed at Rs. 200.