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Judgment
B.P. Dharmadhikari, J.—This appeal u/s 173 of the Motor Vehicles Act, by the appellant-Insurance Company, challenges judgment and award dated 15th July, 2008, delivered by the Presiding Office, Motor Accident Claims Tribunal (North), Panaji, Goa in Claim Petition No. 77/2002. The Insurance Company has filed this appeal only to demonstrate that at the time of the accident, in which husband of respondent No.1 and father of respondents No.2 to 4 expired on 22nd January, 2002, the truck involved therein was not insured with it.
In view of the limited challenge, the other facets normally required to be looked into, are not germane here.
The Motor Accident Claims Tribunal (MACT) has framed the following issues and answered them as mentioned against them:
Learned Counsel for the appellant-Insurance Company submits that the MACT failed to correctly note the impact of obtaining new insurance policy i.e. fresh insurance policy by the owner of the offending truck on 22.1.2002 at 4.50 hours. He submits that it implies knowledge to the owner that earlier policy obtained by him on 7.1.2002 in relation to that truck which would have otherwise continued till 6.1.2003, stood determined before 4.50 hours on 22.1.2002. He states that in this situation, only limited question is, whether 4.50 hours mentioned on policy as time of its commencement was 4.50 at morning or then 4.50 hours in the afternoon ? He states that there is categorical finding of the MACT that the accident took place on 22.1.2002 at 2.00 p.m. and this hour of the accident is not in dispute.
He has invited attention to the evidence of Senior Divisional Manager Ms. M.M. Borkar to demonstrate that the entire business is transacted only during office hours i.e. between 10.00 a.m. to 5.30 p.m., with lunch break between 1.30 p.m. to 2.00 p.m. He further submits that the policy can be obtained only after visiting the office of the appellant and hence, there was no question of the appellant issuing any policy valid from 4.50 a.m. on 22.1.2002 i.e. when the office was not even open for business.
In the alternate and without prejudice, he also submits that in the claim petition before the MACT, the respondents-claimants relied upon the earlier policy which was already terminated on 22.1.2002, as cheque given by the truck owner in relation to that policy had bounced. The claimants had not relied upon the fresh policy which was issued on 22.1.2002 from 4.50 hours. He relies upon a judgment of the Honourable Apex Court reported at Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, to urge that as the policy was obtained after the accident, the said policy could not have been used to fasten the responsibility upon the appellant.
Learned Counsel appearing for the respondents-claimants has submitted that the new policy on which the appellant has placed reliance in the present matter, clearly shows that it was issued at 4.50 hours on 22.1.2002 and the accident had taken place at 2.00 p.m. i.e. after about 10 hours of its issuance. He further contends that the appellant has entered the witness box and examined a responsible officer like Senior Divisional Manager. Except for disclosing office hours, the appellant could not produce any evidence on record to show that 4.50 hours mentioned on policy, necessarily indicated 4.50 in the afternoon and not in the morning. He also draws support from the finding recorded by the learned MACT in para 17 of the impugned judgment. He submits that the appellant also did not bring on record the receipt of cancellation of the contract of insurance by the truck owner before the accident. He submits that in absence of this vital evidence, even on the strength of old policy, the claim ought to have been decreed. He, therefore, states that no interference is warranted in the present matter.
After hearing respective Counsel, only point which arises for determination in the present appeal is, whether time of commencement of the policy i.e. 4.50 hours mentioned in the fresh policy No.141401/31/01/04796 is 4.50 a.m. or then 4.50 p.m. ?
The findings recorded in paragraph 17 on issue No.7 by the MACT show little inconsistency. Learned MACT has observed "There is nothing on record to show that the intimation letter regarding the cancellation of policy which is at Exhibit 84 was received by the respondent no.1". This finding, therefore, implies a conclusion that the old policy terminated by the Insurance Company on 22.1.2002 remained valid, as notice of its termination was not received by the owner before the accident. However, thereafter, the MACT has taken note of the fact that the fresh policy was obtained on 22.1.2001 at 4.50 hours and it has also interpreted the said hours to mean "4.50 a.m.". This finding, therefore, itself shows that the truck owner had notice of cancellation of the contract of insurance before 4.50 a.m. on 22.1.2002 and, therefore, he obtained the fresh policy, otherwise, there was no need for him to proceed to obtain a fresh policy.
Only question therefore is, whether the finding recorded by the MACT that 4.50 hours means 4.50 a.m., is correct or not ? The witness examined by the Insurance Company has deposed about working hours and lunch break. Effort was to show that business is undertaken only during office hours. However, the Insurance Company could have produced other policies and material to show how the format of time is used by it. Whether the format of time of 24 hours or it is only 12 hours. Whether earlier policies or even later polices are issued only during office hours or there are any policies which show use of 24 hours format, meaning thereby, had the policy been issued at 4.50 p.m. in the evening, the time of issuance would have been recorded as 16.50 hours. This material was very much available with the Insurance Company and in the present situation, the Insurance Company did not find it necessary to produce it before the MACT., most probably, as the claimants did not specifically invoke the new insurance policy, it remained satisfied with defence that the old policy had already expired and new policy was obtained.
The MACT has granted compensation in the sum of Rs.7,38,000/-, with 9% interest p.a. on a sum of Rs.3,46,767/-. Said amount is already deposited by the Insurance Company and is lying with the Office of MACT.
Considering these facts and that death of bread-earner in the family of the respondents-claimants has taken place, I am inclined to remand the matter back to the MACT, for fresh consideration on this issue, after giving the claimants, as also the Insurance Company, necessary opportunity to amend their pleadings.
Only to enable the MACT to complete said exercise and to give full opportunity to the claimants, as well as the Insurance Company, the judgment and award delivered on 15th July, 2008 by the Presiding Office, Motor Accident Claims Tribunal (North), Panaji in Claim Petition No. 77/2002 is quashed and set aside. Proceedings therein are restored back to its file. Parties are directed to appear before the learned MACT on 6th October, 2014 at 10.00 a.m. and to abide by its further instructions in the matter. The MACT shall give parties opportunity to amend their pleadings and thereafter, proceed further with determination of the question of validity of earlier insurance policy or then the time of commencement of new insurance policy, in the light of observations made above. The said exercise shall be completed as early as possible and in any case, within a period of six months from the date of appearance mentioned supra.
Till then, the amount in deposit with the MACT, shall not be allowed to be withdrawn.
The appeal is, thus, partly allowed and disposed of. No costs. Record and Proceedings be sent back, immediately.