Sm t Yashwant i Devi Ot hers v. Varun Dixit & Ot hers

respondent no.1/ claim ant , Lat e Shri Gainda Singh, who was a labour, was going for work along wit h Rinku and Udayvir Singh. A t ourist bus bearing no.UP- 22 AT- 0403, which was being driven in a rash and negligent m anner hit cycle of husband of respondent no.1/ claim ant . Husband of respondent no.1/ claim ant was t aken t o hospit al but he died on his way t o hospit al. The post m ort em was conduct ed at Governm ent Hospit al, Bij naur on 08.02.2018 and FI R was regist ered against driver of t he offending vehicle at Kot wali Afzalgarh. I t was cont ended t hat t he deceased was 42 years old and was earning ₹10,000/ - per m ont h, as such, a claim of ₹27,00,000/- was raised.

3. Owner and driver of t he offending vehicle filed t heir writ t en st at em ent and denied t he fact t hat t he offending vehicle was being driven rashly and negligent ly. Owner of t he offending vehicle ( respondent no.5) subm it t ed t hat vehicle was having all t he relevant valid docum ent s; was insured wit h t he appellant and liabilit y t o pay t he claim was of t he insurance com pany.

4. Driver of t he vehicle / respondent no.6 cont ended t hat he was having t he valid driving license and t he bus was not being driven in a rash and negligent m anner and t he accident did not occur from his bus. The appellant / respondent no.3 in t he claim pet it ion, filed it s reply and cont ended t hat t here was no 2 cause of act ion against t he insurance com pany as t here was no com pliance of Sect ion 64-VB of t he I nsurance Act . I t was also cont ended t hat t he insurance policy was issued on 07.02.2018 at 10: 35 a.m . and t he accident occurred on t he sam e day at 8: 30 a.m ., as such, t he vehicle was not insured at t he t im e of accident and t he liabilit y was of t he owner.

5. Learned Mot or Accident Claim Tribunal fram ed t he following issues wit h regard t o t he accident : - 1) Whet her on 07.02.2018 when Gainda Singh along wit h Rinku was going for labour work t hen at 8: 30 a.m . t he driver of vehicle No.UP 22 AT 0403 who was driving t he bus rashly and negligent ly hit t he bye cycle of Gainda Singh due t o which he suffered serious inj ury and while t aking t o hospit al he died? 2) Whet her t he accident occurred due t o t he negligence of t he deceased? 3) Whet her t he driver of t he vehicle was having valid driving license and ot her docum ent s and whet her t he vehicle was insured? 4) Whet her t he claim ant s are ent it led t o any com pensat ion? if yes, t hen t he quant um of com pensat ion?

6. Learned Mot or Accident Claim Tribunal, on 3 t he basis of t he evidence recorded before it , cam e t o a conclusion t hat t he accident t ook place on 07.02.2018 at 8: 30 a.m . due t o rash and negligent driving of t he offending vehicle and t here was no negligence on behalf of t he deceased. The issue no.1 and 2 was decided favour of t he claim ant s and against respondent nos.5 and 6, who are owner and driver of t he offending vehicle. This Court does not find any perversit y in t he said finding of t he learned Mot or Accident Claim Tribunal. Moreover, t here is no challenge t o t he said finding by t he appellant or respondent no.5 and 6. So far as issue no.3,4 and 5 are concerned, t he learned Mot or Accident Claim Tribunal concluded t hat t he vehicle was insured wit h t he appellant / insurance com pany t he claim ant s ent it led com pensat ion from t he insurance com pany.

7. I nsurance com pany has t he present appeal on t he ground t hat t he offending vehicle was not insured wit h t he appellant / insurance com pany and, as such, t here was no liabilit y of t he appellant / insurance com pany t o pay t he com pensat ion. I t was pleaded in t he writ t en st at em ent t hat t he proposal of t he vehicle was prepared on 07.02.2018 at 10: 30 a.m . and t he insurance policy was issued at 10: 35 a.m . on t he sam e dat e. The appellant , as such, cont ended t hat such specific st and t aken in t he writ t en st at em ent was not considered by t he learned Tribunal.

8. The learned Tribunal t ook not e of st at em ent 4 of DW1 Ravikrishan Garg, who was serving in t he insurance com pany, he had st at ed t hat owner of vehicle Varun Dixit cam e t o his hom e at 8: 00 a.m . wit h Bus bearing No.UP- 22A T0403 Chasis No.MB1PCEHD7GEAV4690 and insurance of t he said vehicle was done by t he appellant / insurance com pany. Learned Tribunal cam e t o a conclusion t hat st at em ent of Ravi Krishan Garg was not disput ed by t he appellant / insurance com pany and, as such, t he sam e cannot be discarded and it was held t hat t he prem ium was received on behalf of t he com pany and t hat t he vehicle in quest ion was insured.

9. Learned counsel for respondent nos.1 t o 4/ claim ant s and learned counsel for respondent nos.5 and 6 ( owner and driver of t he offending vehicle respect ively) support ed t he j udgm ent passed by learned Mot or Accident Claim Tribunal and placed reliance on t he j udgm ent passed by Hon’ble Apex Court in t he case of Or i e n t a l I n su r a n ce Co m p a n y Lt d . Vs. D h a r a m Ch a n d report ed in 2 0 1 0 ( 1 5 ) SCC 1 4 1 and t he j udgm ent passed by High Court of Orissa at Cut t ack in t he case of Sm t . Re n u k a Se t h i a n d Ot h e r s Vs. Ba b u Sa h u a n d A n o t h e r in FA O N o .4 8 0 o f 2 0 1 2 .

10. Learned counsel for t he appellant / insurance com pany placed reliance on t he j udgm ent passed by Hon’ble Apex Court in t he case of N a t i o n a l I n su r a n ce Co . Lt d . Vs. So b i n a I a k a i ( Sm t .) a n d Ot h e r s report ed in ( 2 0 0 7 ) 7 SCC 7 8 6 and cont ended t hat as 5 t he insurance proposal was issued on 07.02.2018 at 10: 30 a.m . and t he insurance policy was issued on

07.02.2018 at 10: 35 a.m . aft er t he prem ium was received, as such, t he policy becam e operat ive from t he t im e and dat e as incorporat ed in t he insurance policy and t he effect iveness of t he policy would st art from t he t im e and dat e m ent ioned in t he policy and not from t he earlier point of t im e.

11. On t he basis of rival cont ent ions raised by t he part ies, t he following issue arise for det erm inat ion before t his Court : - 1) Whet her t he respondent s/ claim ant s were ent it led t o any com pensat ion t he insurance com pany, if t he accident occurred on 07.02.2018 at 8: 30 a.m . and if t he policy was issued on 07.02.2018 m ent ioning t he com m encem ent of t he policy from 10: 35 a.m .? 12 The st at em ent of Ravi Krishan Garg, em ployee of t he I nsurance Com pany m akes a reference t hat t he bus owner visit ed his house on 07.02.2018 at 8: 00 a.m . and insurance of t he vehicle was done by his insurance com pany. There is no m ent ion whet her t he prem ium was received by him at t he sam e t im e and t here was no suggest ion from t he claim ant s t hat t he said prem ium was received on 8: 00 a.m . and t he policy was issued at t he said t im e. 6

13. More surprisingly, t here was no st at em ent recorded by Shri Ravi Krishan Garg only t he cross- exam inat ion is recorded. However, it is not clear who exam ined Shri Ravi Krishan Garg and whet her any cross- exam inat ion could be held in absence of any st at em ent recorded by Shri Ravi Krishan Garg. The docum ent ( Paper No.49B) which refers t o t he alleged st at em ent of Ravi Krishan Garg is ext ract ed below: -

14. Paper No.49B ( 49 Kha) read as under: “,eå,ålhåihå laå 131@2018 ;'koUrh nsoh cuke o:.k nhf{kr MhåMCyw0&1 fnå 19-06-2019 uke xokg jfo —".k xxZ iqå Loå Jh thådså xxZ mez 58 o"kZ is'kk lfoZl bu ba';ksjsal daiuh fuoklh dk'khiqj ;qukbZVsM bafM;k ba';ksjsal daiuh xkM+h laå ;qåih022 ,Vh&0403 lqcg yxHkx 8 cts fnukad 07-02-2018 esjs ?kj cl ysdj ekfyd o:.k nhf{kr vk;s FksA cl laå ;wåihå 22 ,Vh 0403 ftldk psfpl laå MB1PCEHD7GEAV4690 gS ftldk ba';ksjsal esjh daiuh }kjk fd;k x;kA ;g dguk xyr gS fd eS çkFkhZ ;k cl ekfyd ls gelkt gksdj ;k futh Qk;nk mBkus ds mís'; ls >wBh xokgh ns jgk gwaA ;g dguk Hkh xyr gS fd o:.k nhf{kr }kjk cl dk ba';ksjsal djkus esa iSlk vnk u fd;k x;k gksA lqudj rLnhd fd;k x;kA”

15. Thus it is clear t hat t here is no m ent ion of t he t im e as t o when prem ium was received by Ravi Krishan Garg. The insurance com pany’s proposal form bears t he endorsem ent of it s issuance on 07.02.2018 at 10: 30 a.m . and t he cert ificat e of insurance which depict s effect ive dat e for com m encem ent of insurance for t he purpose of t he Act endorses t he dat e of 07.02.2018 and t im e is 10: 35 hours. The said docum ent s were m arked as Paper No.48C- 3 ( 48Ga/ 3) and 48- C4 ( 48Ga/ 4) . Thus, t he Court is of t he opinion t hat learned 7 Tribunal fell int o error while placing reliance on t he st at em ent of Ravi Krishan Garg and failed t o t ake not ice of t he docum ent s Paper No.48C- 3 and 48- C4 which clearly reveal t he effect iveness of t he insurance policy.

16. The reliance placed by learned counsel for respondent nos.1 t o 4/ claim ant s on t he j udgm ent passed by Hon’ble Apex Court in t he case of Or i e n t a l I n su r a n ce Co m p a n y Lt d . Vs. D h a r a m Ch a n d report ed in 2 0 1 0 ( 1 5 ) SCC 1 4 1 and t he j udgm ent passed by High Court of Orissa at Cut t ack in t he case of Sm t . Re n u k a Se t h i a n d Ot h e r s Vs. Ba b u Sa h u a n d A n o t h e r in FA O N o .4 8 0 o f 2 0 1 2 ( su p r a ) m isplaced as t he fact s of aforesaid cases were different as in t he aforesaid case decided by t he Hon’ble Apex Court t he cover not e was issued on 07.05.1998 at 4: 00 p.m ., however, t he dat e of com m encem ent was m ent ioned as 08.05.1998 and as such t he counsel for t he insurance com pany has st at ed t hat as t he prem ium was received on 07.05.1998 t hr ough cheque as such t he com m encem ent dat e would be of 07.05.1998 whereas in t he present case it is t he specific case of t he insurance com pany t hat proposal form was issued on

07.02.2018 at 10: 30 a.m . and insurance policy was issued at 10: 35 a.m .

17. The issue as t o when t he policy becom es operat ive was considered by t he Hon’ble Apex Court in t he case of N a t i o n a l I n su r a n ce Co . Lt d . Vs. So b i n a 8 I a k a i ( Sm t .) a n d Ot h e r s ( su p r a ) wherein it was held as under: - “ 1 2 . Adm it t edly, at t he t im e when t he accident had occurred at 9.15 a.m . on 20- 7- 1994, t he respondent did not have t he insurance cover. The insurance policy was obt ained at 2.00 p.m . on 20- 7- 1994, which t he m ot or renewal endorsem ent set out in t he earlier part of t he j udgm ent . is clearly evident 1 3 . The insurance policy and t he m ot or renewal endorsem ent were on record. Bot h t hese docum ent s were produced and proved by t he appellant Com pany. The Tribunal and t he High Court have seriously erred in ignoring t hese basic and vit al docum ent s and deciding t he appellant Com pany on t he ground of non- product ion t he cashier and developm ent officer. This m anifest ly erroneous approach of t he High Court has led t o serious m iscarriage of j ust ice. t he case against in New 1 4 . This Court had an occasion t o exam ine t he sim ilar cont roversy I ndia Assurance Co. Lt d. v. Ram Dayal [ ( 1990) 2 SCC 680 : 1990 SCC ( Cri) 432 : ( 1990) 2 SCR 570] . I n t his case, t his Court held t hat in absence of any specific t im e m ent ioned t he cont r act would be operat ive from t he m idnight of t he day by operat ions of t he provisions of t he General Clauses Act but in view of t he t he special cont ract m ent ioned insurance policy, t he policy would st art from t he t im e and dat e indicat ed in t he policy. t he effect iveness of t he policy, 1 5 . A t hree- Judge Bench of t his Court in Nat ional I nsurance Co. Lt d. v. Jikubhai Nat huj i Dabhi [ ( 1997) 1 SCC 66] has held t hat in t he absence of any specific t im e m ent ioned in t hat behalf, t he cont ract would be operat ive from t he m idnight of t he day by operat ion of provisions of t he General Clauses Act . But in view of t he special cont ract m ent ioned in t he insurance policy, it would be operat ive from t he t im e and dat e t he insurance policy was t aken. I n t hat case, t he insurance policy was t aken at 4.00 p.m . on 25- 10- 1983 and t he accident had occurred earlier t heret o. This Court held ( at SCC p. 67, para 3) t hat t he insurance coverage would not enable “ t he claim ant t o seek r ecovery of t he am ount from t he appellant Com pany” . 1 6 . Anot her t hree- Judge Bench of t his Court in Orient al I nsurance Co. Lt d. v. Sunit a Rat hi [ ( 1998) 1 SCC 365] dealt wit h sim ilar fact s. I n t his case, t he accident occurred at 2.20 p.m . and t he cover not e 9 was obt ained only t hereaft er at 2.55 p.m . The Court observed t hat t he policy would be effect ive from t he t im e and dat e m ent ioned in t he policy. 1 7 . I n New I ndia Assurance Co. v. Bhagwat i Devi [ ( 1998) 6 SCC 534] t his Court observed t hat , in absence of any specific t im e and dat e, t he insurance policy becom es operat ive t he previous m idnight . But when t he specific t im e and dat e is m ent ioned, insurance policy becom es effect ive from t hat point of t im e. This Court in New I ndia Assurance Co. Lt d. v. Sit a Bai [ ( 1999) 7 SCC 575 : 1999 SCC ( Cri) 1322] and Nat ional I nsurance Co. Lt d. v. Chint o Devi [ ( 2000) 7 SCC 50 : 2000 SCC ( Cri) 1272] has t aken t he sam e view. t hen t he 1 8 . I n J. Kalaivani v. K. Sivashankar [ ( 2007) 7 SCC 792 : JT ( 2001) 10 SC 396] t his Court has reit erat ed clear enunciat ion of law. The Court observed t hat it is t he obligat ion of t he court t o look int o t he cont ract of insurance t o discern whet her any part icular com m encem ent or expiry of t he policy . A very large num ber of cases have com e t o our not ice where insurance policies are t aken im m ediat ely aft er t he accident s in a clandest ine m anner. t o get com pensat ion specified t im e 1 9 . I n order t o curb t his widespread m ischief of get t ing insurance policies aft er t he accident s, it is t he absolut ely effect iveness of t he insurance policy would st art from t he t im e and dat e specifically incorporat ed in t he policy and not from an earlier point of t im e.” t o clearly hold im perat ive t hat

18. I n view of t he discussion m ade above, it is held t hat learned Mot or Accident Claim Tribunal erred while com ing t o t he conclusion t hat t he vehicle in quest ion was having valid insurance cover. Thus t he respondent nos.1 t o 4/ claim ant s were not ent it led t o any com pensat ion from t he insurance com pany. The appeal by t he insurance com pany is allowed and t he order passed by learned Mot or Accident Claim Tribunal is set aside so far as it relat es t o t he direct ion issued for paym ent of com pensat ion t o t he claim ant s from t he insurance com pany. The st at ut ory deposit m ade by t he 10 I nsurance Com pany before t his Court be released in favour of t he appellant / I nsurance Com pany. The records of t he t rial be sent back t o t he Mot or Accident Claim Tribunal concerned.

19. Respondent nos.1 t o 4/ claim ant s would be ent it led for t he com pensat ion as det erm ined by t he learned Mot or Accident Claim Tribunal from t he owner i.e. respondent no.5. Respondent no.5 is direct ed t o pay the compensation of ₹3,94,000/- along wit h sim ple int erest @ 6% per annum from t he dat e of filing claim pet it ion t o t he claim ant s in t he rat io as det erm ined by t he learned Mot or Accident Claim Tribunal/ I I I rd Addit ional Dist rict Judge, Rudrapur, Dist rict Udham Singh Nagar. ( Su b h a sh Up a d h y a y , J.)

14.08.2025 Sukhbant SUKHBANT SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=71978f9c61bfde0ba69967c787b1764ea7bc7dd129a8a638 0d49b1885e628615, postalCode=263001, st=UTTARAKHAND, serialNumber=2D8B71B8D8E345F6B7F95B1DD4FB4BEBD2B7D72C 42261361AED33172F152148D, cn=SUKHBANT SINGH 11