United India Insurance Company Ltd. vs Smt. Mamta Gupta and others

Dipak Misra, J.

In this appeal preferred u/s 173 of the Motor Vehicles Act, 1985 (for brevity ''the Act'') the insurer, United India Insurance Company Ltd., has called in question the defeanibility of the award dated 6-8-1996 passed by the Vlth Additional Motor Accident Claims Tribunal, Bhopal in M.C.C. No. 184/1996 whereby the Tribunal has mulcted the liability of Rs. 2.00 lacs on the insurer on the foundation that the policy that was issued on 26-3-1992 as per Exhibit Annexure D-1 and D-1-A would go a long way to show that it was issued at 2:30 a.m. so as to cover the accident that took place on 26-3-1992 at 9:00 O''clock in the morning.

We are not inclined to state the facts in detail inasmuch as Mr. Sanjay Agrawal, Learned Counsel for the Insurance Company very fairly stated that with regard to occurrence of accident the vehicle involved and other aspects are not questioned by the Insurance Company. The main fulcrum of challenge relates to saddling of liability on the company on interpolation of the policy. It is submitted by him that the Tribunal has made comparison between the original policy Exhibit D-1 and the certified copy of the policy Exhibit D-1-A and has expressed the view that in Exhibit D-1 it has been mentioned 2:30 p.m. whereas in the certified copy, to which the Tribunal has referred to as the carbon copy, there is no mention of any p.m. and hence, it has to be construed as 2:30 O''Clock which would mean 2:30 a.m.

Criticizing the aforesaid, it is contended that even if the finding of the Tribunal with regard to the non mentioning of 2:30 p.m. is accepted, it is inconceivable that the Insurance Company would issue a policy at 2:30 a.m. It is also submitted that if time is not mentioned, the policy would have become effective from the midnight of 25-3-1992 but the Tribunal has not commented with regard to any kind of interpolation of time and there is nothing on record to overturn such a finding.

Learned Counsel for the appellant has commended us to certain citations to bolster his contentions that once the time is mentioned, the Insurance Company would be liable from that point of time.

Mr. Sanjay Patel, Learned Counsel for the claimants/respondents very has contended that the finding of the Tribunal inasmuch as Exibit. D-1 is concerned, there is a mark of the whitener which creates doubt. There is no mention of p.m. Though the Tribunal has not recorded the finding that the timing was interpolated, this Court has dwelled upon the same and recorded the finding inasmuch as the Insurance Company has done certain act which was unwarranted on its part.

First we shall address ourselves with regard to the law relating to the mention of time in the policy. In the case of M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, the Apex Court while dealing with the concept that when policy becomes operative, expressed the view that when the time frame is mentioned it becomes a special contract and therefore, the liability of the insurer would become effective from that point of time.

In the aforesaid case the law laid down in the case of New India Assurance Co. Ltd. Vs. Ram Dayal and Others, was distinguished. In the aforesaid case there was absence of any specific time mentioned and in such a case the contract would be operative from the midnight of the day by operation of provisions of the General Clauses Act, 1897. Thus, in the aforesaid case emphasis was laid on the factum of special contract. The aforesaid decision was followed by a three Judge Bench in the case of New India Insurance Co. Vs. Bhagwati Devi and Others, . In the aforesaid case their Lordships has expressed the view that if there would be no contract, to the contrary, the Insurance Policy would become operative from the previous midnight when brought during the day following. But when a specific time for its purchase is mentioned in the policy it becomes operative from the aforesaid specific time. Similar view was expressed in the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi and Others, wherein in paragraph 3 it has been held thus :

It follows that the insurer cannot be held liable on the basis of the above policy in the present case and, therefore, the liability has to be of the owner of the vehicle. However, we find that the High Court, without assigning any reason, has simply assumed that the owner of the vehicle was not liable and that the insurer alone was liable in the present case. This conclusion, reached by the High Court, is clearly erroneous. The liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is, thus, a basic fallacy in the conclusion reached by the High Court on this point.

In the case of National Insurance Company Ltd. Vs. Mrs. Chinto Devi and Others, the principle was reiterated and it was held that the time of issue would decide the consequential liability. We have referred to the aforesaid decisions only to appreciate the factum that once a time is mentioned in the policy that becomes paramount and the governing factor. The cavil in the present case is whether it was issued at 2:30 p.m. or 2:30 a.m. Mr. Patel appearing for the respondents would like us to concur with the finding arrived at by the Tribunal that the policy was issued at 2:30 a.m. Mr. Agrawal per contra would submit that it was issued at 2:30 p.m. and due to inadvertence it was not mentioned while obtaining the certified copy. As a matter of fact 2:30 is mentioned in Exhibit D-1 and D-1-A but neither a.m. nor p.m. is mentioned. It stands to prudence that it should be 2:30 p.m. and not 2:30 a.m. it is worth noting that it would be absolutely in the realm of inconceivability to construe that the insurer had issued the policy at 2:30 in the morning. Had it there be no mention of time in the policy by the Insurance Company it would have become operative from the midnight as per General Clauses Act, 1897. In the present case, it should be construed to be p.m. as the same is consonance with reasonability.

In view of the aforesaid analysis of the award passed by the Tribunal, saddling the liability on the Insurance Company is vulnerable and accordingly we exonerate the Insurance Company. Needless to emphasise, the owner of the vehicle would be liable, as there has been a transfer of the vehicle.

Before we part with the case we must indicate that by order dated 18-10-1996 this Court while granting stay had directed the Insurer to deposit 75,000/- in addition to the amount already deposited. It is submitted by Mr. Agrawal, Learned Counsel for the appellant that the aforesaid amount has been deposited.

In view of the aforesaid, liberty is granted to the insurer/appellant to proceed against the owner to realize the sum. We have passed the aforesaid order keeping in view the concept of equity.

The appeal stands allowed without any order as to costs.