BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.04.2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.1546 of 1997 Ms. United India Insurance Company Limited Super Bazaar, Trichy. ...Appellant Vs 1. Arumugham 2. Dhanabal ...Respondents Prayer Appeal filed under Section 30 of Workmen's compensation Act, against the order passed by the Commissioner under Workmen's Compensation Act (Deputy Commissioner of Labour) Trichy, made in W.C. No. 72 of 1996, dated 17.4.1997. !For Appellant ... Mr. J.S.Murali. ^For Respondents ... Mr.A.Saravanan :JUDGMENT
This appeal has been preferred against the award passed in W.C.No.72 of
1996 on the file of the Commissioner under Workmen’s Compensation Act (Deputy
Commissioner of Labour) Trichy, made in W.C. No. 72 of 1996, dated 17.4.1997.
The United India Insurance Co., Ltd.,/2nd respondent in W.C.No.72 of 1996 is
the appellant herein.
2. The facts in brief are as follows:
On 22.4.1996, the claimant’s wife Valliyammai, while employment under the first
respondent, while travelling in a lorry bearing Registration No.TNY-3597 , due
to the rash and negligent driving of the driver of the said lorry met with an
accident resulting the death of the above said Valliyammai, who was aged 45 at
the time of accident. Hence, claiming a sum of Rs.2,00,000/- towards
compensation, the widower has filed the claim petition in W.C.No.72 of 1996.
3. The first respondent in his counter has stated that the said
Valliyammai died during the course of employment. But the award of
compensation, if any, is to be paid only by the insurer, the second respondent .
4. The second respondent in his counter has contended that the lorry
bearing Registration No.TNY-3597 which involved in the accident, was not insured
with the second respondent by the first respondent, the owner of the said lorry.
The deceased Valliyammai was not a load woman under the first respondent and she
was not drawing a sum of Rs.2,000/- per mensum towards her wages. The accident
had occurred during the said Valliyammai was in the course of her employment
under the first respondent.
5. Before the Deputy Commissioner of Labour (The Commissioner under
Workmen’s Compensation Act) Trichi P.W.1 was examined and Ex P1 to P3 were
marked on the side of the claimants and Ex R1 and Ex R2 were exhibited but no
oral evidence was let in on the side of the respondents.
6. On the basis of the available oral and documentary evidence, the
Deputy Commissioner of Labour (The Commissioner under Workmen’s Compensation
Act) Trichi has held that the accident had occurred only during the course of
employment and that the appellant herein Insurance Company is liable to pay the
compensation awarded in W.C.No.72 of 1996. Aggrived by the said award in
W.C.No.72 of 1996, the second respondent Insurance Company has preferred this
appeal.
7. Now the substantial question of law involved in this appeal is whether
the appellant/Insurance Company is liable to pay the compensation awarded in
W.C.No.72 of 1996 in the absence of any policy on the date and time of the
accident?
8. The Point:
The learned counsel for the appellant would contend that the accident had
occurred only at 11.30 a.m., on 22.4.1996 and that as per Ex R2(2), the policy
was in force from 2.3.1995 to 11.3.1996 for the vehicle involved in the
accident. But, subsequently, the policy was not renewed for the vehicle till
4.00p.m., on 22.4.1996 and that under Ex R2(1), the Insurance policy was taken
for the vehicle, which involved in the accident bearing Registration No.TNY
3597, lorry on 22.4.1996 from 4.00 p.m., to 21.4.1997. So from 1.4.1996 to
22.4.1996 3.59p.m., there was no policy in force for the vehicle which involved
in the accident. The learned counsel for the appellant would contend that
since there was no Insurance policy on force at the time of date of accident,
the appellant is not liable to pay the compensation. The learned counsel in
support of his contention, has relied on New India Assurance Co., Ltd-vs- Sita
bai and others(2000 ACJ 40) . The facts of the said case are that a claim
petition was filed claiming compensation for an accident which took place at
10.00 a.m., on 16.4 1987, the vehicle which involved in the said accident
bearing Registration No.CPO 9104 owned by the respondent No.5 and driven by
respondent No.6 in that case. The said bus involved in an accident in which one
Salta Bai suffered fatal injuries. The Tribunal has awarded compensation on the
ground that the bus which involved in the accident was insured with the
appellant Insurance Company for the period from 16.4.1987 to 15.4.1988. In that
case, a proposal for insuring the vehicle which involved in the accident was
made by the owner on 16.4.1987 at 21.00 hours. The cover note was issued by the
appellant in respect of that vehicle on 16.4.1987 at 21.00 hours and the
Insurance Company Ex.P.5 was later on issued in which also the date of
commencement of the Insurance policy was recorded as 16.4.1987(21.00 hours). But
the accident had occurred on 16.4.1987 at 10.00 a.m., The question that arose
for consideration before the Apex Court in the said case was whether the
Insurance Company is liable to pay the compensation. While deciding the case in
favour of the Insurance Company to the effect that the Insurance Company is not
liable to pay the compensation, since there was no policy in force at the time
of accident. The Full Bench of the Honourable Apex Court has held as follows:
” The correctness and applicability of the Judgement in Ram Dayal’s case, 1990
ACJ 545(SC) came up for consideration before this Court subsequently in a number
of cases. In New India Assurance Co., Ltd., v. Bhagwati Devi, I999 ACJ 534(SC),
a three-Judge Bench of this Court relied upon the view taken in National
Insurance Co., Ltd., .v. Jikubhai Nathuji Dabhi 1997 ACJ 351(SC) wherein it had
been held that if there is a special contract, mentioning in the policy the time
when it was bought, the insurance policy would be operative from that time and
not from the previous midnight as was the case inRam Deyal(Supra) where no time
from which the insurance policy was to become effective had been mentioned. It
was held that should there be no contract to the contrary,an Insurance policy
becomes operative from the previous midnight, when bought during the day
following, but, in cases where there is a mention of the specific time for the
purchase of the policy, then a special contract comes into being and the policy
becomes effective from the time mentioned in the cover note of the policy
itself. The Judgment in Jikubhai’s case(supra) has been subsequently followed
in Oriental Insurance Com., Ltd., v.Sunita Rathi 1998 ACJ 121(SC), by a three
Judge Bench of this Court also.
In the fact situation of this case since the commencement of the policy at
21.00 hours on 16.4.1987 was after the accident which had occurred at 10.00
hours on 16.4.1987, the Tribunal as well as the High Court were wrong in
burdening the appellant Insurance Company with any liability under Section 92-A
of the Motor Vehicles Act by applying the law laid down in Ram Dayal’s case 1990
ACJ 545(SC), which, on facts, had no application to this case. This case is
squarely covered by the Judgment in Jikubhai’s case 1997 ACJ 351(SC) and the
other Judgments following it as noticed above”.
The facts in Oriental Insurance Co., Ltd.,-v- Sunita Rathi and others(1998 ACJ
121) are that the accident in that case took place at 2.20p.m., on 10.12.1991.
The Insurance policy was taken on 10.12.1991 at 2.55p.m.,, ie., 35 minutes after
the accident. The same point was mooted before the Apex Court where the
Insurance Company is liable to pay the compensation for an accident which took
place 35 minutes before the insurance policy was taken in respect of the vehicle
which involved in the accident. Following the dictum in 1997 ACJ 351(SC)
National Insurance Company Ltd., v. Jikubhai Nathuji Dabhi, the Apex Court as
follows:
“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”
The above said ratio of the Apex Court was followed by a Division Bench of this
Court in National Insurance Co., Ltd.,-v- Geetha and others(2006 ACJ 700).
The facts are the accident occurred on 15.6.1995 at 5.30 a.m., Cheque towards
premium was given on 12.6.1998 and it was contended that as premium was paid
anterior to the accident, the Insurance Company is liable to pay the
compensation. But in that case, it has been specifically stated in the policy
that the commencement of the policy was from 10.00 a.m., on 15.6.1998 to mid
night of 14.6.1999. It was held that the Insurance Company under such
circumstances is not liable to pay any compensation since, there is specific
time and date mentioned in the policy. The learned counsel appearing for the
appellant has also relied on another Division Bench decision of this Court
in National Insurance Co., Ltd, Motor Third Party Claims-vs- N.Ponnaiyan @
Kolappan and others(2004(1)TNMAC 63(DB) wherein the accident took place on
12.7.1991 at 3.00.p.m., and the insurance policy was in effect from 7.15 p.m.,
on 12.7.1991. The Division Bench holding that the Insurance Company is not
liable to indemnify the insured because there was no policy in force at the time
of accident. The relevant observation in the said judgment is as follows:
” There is no dispute that the accident had occurred on 12.7.1991 at 3.00p.m., .
In the policy – Ex R2 , it is specifically stated that the policy comes into
effect from 7.00 p.m., on 12.7.1991. Though the Deputy Commissioner relying on
the earlier decisions has concluded that irrespective of the fact that the
policy was taken on 7.00 p.m., directed the Insurance Company to deposit the
compensation amount. In the light of the decision of the Supreme Court cited
supra, we are unable to accept the conclusion arrived at by the Commissioner .
In the said decision, their Lordships after considering various earlier
decisions held that,
” The correctness and applicability of the Judgement in Ram Dayal’s case, 1990
ACJ 545(SC) came up for consideration before this Court subsequently in a number
of cases. In New India Assurance Co., Ltd., v. Bhagwati Devi, I999 ACJ 534(SC),
a three-Judge Bench of this Court relied upon the view taken in National
Insurance Co., Ltd., .v. Jikubhai Nathuji Dabhi 1997 ACJ 351(SC) wherein it had
been held that if there is a special contract, mentioning in the policy the time
when it was bought, the insurance policy would be operative from that time and
not from the previous midnight as was the case inRam Deyal(Supra) where no time
from which the insurance policy was to become effective had been mentioned. It
was held that should there be no contract to the contrary,an Insurance policy
becomes operative from the previous midnight, when bought during the day
following, but, in cases where there is a mention of the specific time for the
purchase of the policy, then a special contract comes into being and the policy
becomes effective from the time mentioned in the cover note of the policy
itself. The Judgment in Jikubhai’s case(supra) has been subsequently followed
in Oriental Insurance Com., Ltd., v.Sunita Rathi 1998 ACJ 121(SC), by a three
Judge Bench of this Court also.
The above said dictums of the Apex Court will squarely applicable to the present
facts of the case. Herein also, the policy specifically mentions the time of
commencement as 4.00p.m.,on 22.4.1996 whereas the accident had occurred on
22.4.1996 at 11.30 a.m.,. Under such circumstances, the Insurance Company is
not liable to pay the compensation awarded by the Deputy Commissioner of
Labour(The Commissioner under Workmen’s Compensation Act) in W.C.No.72 of 1996
because there was no policy in force at the time of accident. Hence I hold on
the point that the award passed in W.C.No.72 of 1996 as against the
appellant/second respondent in W.C.No.72 of
1996 is liable to be set aside for the reasons stated in the memorandum of
appeal in C.M.A.No.1546 of 1997. The point is answered accordingly.
9. In the result, the appeal is allowed and the award passed in W.C.No.72
of 1996 as against the appellant herein is hereby set aside. The first
respondent in W.C.No.72 of 1996 as the owner of the lorry which involved in the
accident bearing Registration No.TNY 3597 is liable to pay the compensation to
the claimants in W.C.No.72 of 1996. No costs.
sg
To
The Commissioner under Workmen’s compensation Act
(Deputy Commissioner of Labour)
Trichirapalli.