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Judgment
COUNSEL for the complainant, Mr. V.L.N.G.K. Murthy, is not present. No representation on his behalf. The opposite parties i.e., National Insurance Company Limited at Calcutta, at Hyderabad, and at Kakinada, filed a common counter on 7.10.1993 itself. They filed also an additional counter on 24.6.1994 and number of documents sought to be relied upon by them, on 27.8.1998. For the complainant reply affidavit was filed on 19.7.1994. On 27.8.1998 we gave time to both sides till 23.12.1998 to file true and correct copies of all documents sought to be relied upon by them, list of witnesses, and affidavit evidence of witnesses sought to be examined after serving copies of the same on the other side COUNSEL and also observing that no further time would be granted for that purpose. In spite of that the COUNSEL for the complainant has not filed any further documents nor any list of witnesses nor any affidavit evidence of witnesses sought to be relied upon by the complainant though time was granted from time-to-time till today.
THE case of the complainant is that it engaged M/s. Bal Bulk Carriers, Bombay to carry the Hexane released to it by Hindustan Petroleum Corporation Ltd., at Bombay and after the Hexane, was loaded into the tanker MWU 2748 belonging to M/s. Bal Bulk Carriers for transportation to its factory at Samalkot, the tanker halted for some repairs at Resort Auto Garage, Bombay and thereafter it left Bombay on 10.10.1992 by 10.00 a.m. for Samalkot. On 11.10.1992 at 4.00 a.m. it met with an accident near Urali, Village about 40 kms. from Pune and the entire Hexane leaked out resulting in total loss of the Hexane. According to the complainant it insured the goods i.e. Hexane that was being carried by the tanker MWU 2748; with the opposite parties and lodged a claim on them for Rs. 1,52,000/- for the loss of Hexane. THE Surveyors of the opposite parties, M/s. Bhatawadekar & Co., investigated and surveyed and assessed the loss and submitted a report dated 31.10.1992 assessing the loss at Rs. 1,42,613/- and on that basis the complainant submitted a claim for a sum of Rs. 1,42,613/- and also for a further sum of Rs. 3,800/- towards survey charges. As the claim was repudiated by the opposite parties by letter dated 30.3.1993, the complainant approached this Commission claiming a sum of Rs. 1,46,413/- together with interest at 24% per annum from 18.11.1992 to 14.6.1993. THE complaint was presented on 26.6.1993. THE defence of the opposite parties is that the policy itself was taken after the accident which occurred according to them on 10.10.1992 at 3.20 a.m. and also after the commencement of the journey by the tanker MWU 2748 and that it was obtained by mis-representation and suppression of material facts and that therefore the complaint itself has no legs to stand. In support of the case of the opposite parties, police panchanama and the order of the Judicial Magistrate of First Class, Daund, copy of the repudiation letter, and investigation report by Insight Intelligence were filed in addition to the affidavit of Mr. M.A.A. Baig, Divisional Manager of the National Insurance Company Ltd., Kakinada Divisional Office. The police panchanama in respect of the accident was on 10.10.1992 from 10.15 a.m. to 11.15 a.m. and it recorded that the accident took place at K.M. 32/ 4 on Pune - Sholapur Road and that the panchas saw Tanker No. MWU 2748 involved in the accident toppled on the cleaner side and that the four wheels of the said tanker were towards the highway side and that there were tyre marks of 25 feet on the sand to the side of the road upto the place of accident. They found the tanker empty. They also found the papers in the cabin showing that 1400 litres of ''Hexane'' was filled in the tanker from Hindustan Petroleum, Bombay No. 74, but due to leakage the entire tank was empty. The panchanama was in Marathi. A translation in English is filed alongwith a copy in Marathi. The order of the Magistrate dated 20.10.1992 shows that the accused motor driver Balvindersing Krupalsing, while driving his Truck-Tanker MWU 2748 in a high speed on 10.10.1992 on Pune-Sholapur Highway near Kilometre No. 32/ 4, caused an accident and damage of about Rs. 70,000/- to the Truck and the ''Hexane'' in the said Tanker and committed an offence under Section 184 of the Motor Vehicles Act and 427 of Indian Penal Code. He was sentenced to suffer simple imprisonment for 2 months and 6 months. The police report from Police Station Yawat submitted to the Magistrate at Daund stated that the accident occurred on 10.10.1992 at 3.00 a.m. In the investigation report dated 6.10.1993 submitted by Insight Intelligence a reference was made to the spot panchanama, and the order of the learned Magistrate, Daund and it stated that the vehicle in question left from Bombay on 9.10.1992 in the evening at about 4.00 p.m. with a load of ''Hexane Oil'' and was involved in an accident during the early hours of 10.10.1992 and that the police conducted spot panchanama on 10.10.1992 at 10.15 hours. It was on this basis that the opposite parties repudiated the claim of the complainant holding that the policy itself was taken subsequent to the time and date of occurrence.
The complainant has filed xerox copies of Cover Note No. 44076 and Inland Transit Policy No. 50800/21192/44/294, both dated 10.10.1992, taken by the complainant from the 3rd opposite party at Kakinada. It was noted therein that the conveyance was by road and the goods conveyed were Food Grade Hexane and the value covered was Rs. 4,54,422/-. The period of insurance was shown as 10.10.1992, 9.00 a.m. to 9.10.1993. The voyage was mentioned as from anywhere in India to Samalkot factory premises. The complainant also filed the intimation dated 10.10.1992 given by it to the 3rd opposite party in respect of Tanker No. MWU 2748 LR. No. 263 despatched from Bombay to Samalkot factory premises carrying the load of Food Grade Hexane of the value of Rs. 1,52,000/-. Going through the policy and the cover note it is very clear that the period for which the cover was given under the Inland Transit Policy in question was from 10.10.1992, 9.00 a.m. to 9.10.1993. In National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi, II (1996) ACC 694 (SC)=1997 (1) SCC 66=AIR 1997 SC 2147. the Supreme Court distinguished its earlier decision in New India Assurance Co. Ltd. v. Ram Dayal, (supra) and held that in view of the special contract mentioned in the insurance policy, namely, it would be operative from 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the insured. In Ram Dayal case, II (1990) ACC 90 (SC)=1990 (2) SCC 680 it held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the midnight of the day by operation of provisions of the General Clauses Act, 1897. This decision of the Supreme Court was followed by another three Judges of the Supreme Court in New India Assurance Co. v. Bhagwati Devi, III (1999) SLT 269 (SC)=1998 (6) SCC 534 holding as follows : "The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon."
IT therefore follows from these decisions that on the facts of the present case the insurance cover would be available to the complainant in respect of the ''Hexane'' carried by the tanker bearing No. MWU 2748 only from 9.00 a.m. on 10.10.1992. The complainant has not placed anything reliable before this Commission for establishing that the accident in respect of that tanker took place after 9.00 a.m. on 10.10.1992. They only filed survey report of Bhatawadekar & Company dated 31.10.1992 wherein it was stated that the entire ''Hexane'' leaked out from the tanker MWU 2748 when it met with an accident on the road near Village Urali on 11.10.1992 at 4.00 a.m. about 40 kms. from Pune near Urali on Pune-Sholapur Road. That survey report does not state the material based on which such report was given. In view of the investigation report of Insight Intelligence dated 6.10.1993 based on which the opposite parties repudiated the claim of the complainant that the accident occurred around 3.00 a.m. on 10.10.1992 much before the time when the policy was taken, we are clearly of the view that there was no deficiency in service on the part of the opposite parties in repudiating the claim of the complainant. The said investigation report relied upon the panchanama dated 10.10.1992, statement dated 12.10.1992 taken by the police from the driver of the tanker Balvindersing Krupalsing and the statement of the cleaner of the tanker Mohansing Darshansing dated 10.10.1992 all of which clearly stated that the accident occurred in respect of the tanker in question on 10.10.1992 at 3.00 a.m. In the result we do not find any merit in this complaint. IT is accordingly dismissed with costs of Rs. 2,000/- to be paid to the opposite parties within 6 weeks, from today by the complainant. Complaint dismissed.