2009(6 ) SCR 289
ORIENTAL INSURANCE CO. LTD.
v.
PORSELVI & ANR.
(Civil Appeal. 2170 of 2009.)
APRIL 2, 2009
[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned single Judge of
the Allahabad High Court dismissing the appeal filed by the present appellant under
Sec.173 of the Motor Vehicle Act, 1988 (in short the `Act').
3. The factual position is almost undisputed and the only dispute relates to the
date of commencement of the policy i.e. the date from which the policy was in
operation. The accident took place on 28/5/1996. The policy covers the period from
29.5.1996
to 28.5.1997. The High Court in para 13 of the impugned judgment held
as follows:
“As the cover note has already been issued on 28.5.1996 itself, which is
also entered in Ex. B1, Policy, the finding of the Tribunal fastening liability on
the appellant cannot be termed as perverse. In view of the above discussion,
there is no merit in this appeal. The quantum of compensation has not been
disputed by the appellant–Insurance Company. In the result, the CivilMiscellaneous Appeal fails and the same is dismissed.”
4. Learned counsel for the appellant brought to our notice the cover note which
clearly indicates that the policy was valid from 29.5.1996 to 28.5.1997 though it was
issued on 28.5.1996. A copy of the policy was brought on record. Relevant portion
thereof reads as follows:
“Effective date of commencement of insurance for the purpose of the Act,
from 0’clock on (date) 29.5.1996 to midnight of 28.5.1997.”
5. A three Judge Bench of this Court in New India Assurance Co. Ltd. v. Sita
Bai (Smt.) and Ors. [(1999) 7 SCC 575) inter alia observed as follows:
“6. The correctness and applicability of the judgment in Ram Dayal case
[(1990) 2 SCC 680] came up for consideration before this Court subsequently in
a number of cases. In New India Assurance Co. v. Bhagwati Devi [(1998) 6
SCC 534] a three-Judge Bench of this Court relied upon the view taken in
National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66]
wherein it has 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 in Ram
Dayal case 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/the policy itself. The judgment in Jikubhai case has beensubsequently followed in Oriental Insurance Co. Ltd. v. Sunita Rathi [1998) 1
SCC 365] by a three-Judge Bench of this Court also.
6. Since the effect of the aforesaid factual position has not been considered by
the High Court we set aside the impugned judgment and remit the matter for fresh
consideration in accordance with law.
7. The appeal is disposed of.